Kicking Out Paid Conference Attendee May Be Breach of Contract—but His Returning Is Still Criminal Trespass

A case stemming from a "Holocaust revisionist's" expulsion from a conference on "Mennonites and the Holocaust."

From Leichty v. Bethel College, decided April 20 by the Tenth Circuit (Judge Robert Bacharach, joined by Judges Bobby Baldock & Joel Carson):

This appeal involves the scope of rights that come with attendance at a conference. Upon paying the required fee, individuals obtain rights to attend the conference. But under what circumstances can the conference organizers expel attendees? And does expulsion subject individuals to arrest if they reappear at the conference? Here we conclude that purchase of a ticket created an irrevocable right to attend the conference. But once the attendee was expelled, his reappearance could support an arrest for trespass….

These issues arise from a two-day conference sponsored by Bethel College, which is a Mennonite college in the City of North Newton, Kansas. The subject of the conference was the Mennonites' role in the Holocaust.

Mr. Bruce Leichty paid the $100 attendance fee to attend the conference and planned to conduct his own program in the evening. At the evening program, Mr. Leichty and two associates would present "unusual perspectives on the Holocaust."

Before the conference had begun, Mr. Leichty distributed flyers about his own program. The organizers asked Mr. Leichty to stop distributing the flyers on the conference grounds. But Mr. Leichty refused to stop until the organizers called the police.

The conflicts resumed at the conference when Mr. Leichty stood to make a comment. One of the conference organizers reminded Mr. Leichty to stay on topic. Mr. Leichty then commented that Jewish people had different perspectives on the Holocaust. One of the conference organizers instructed someone to cut Mr. Leichty's microphone. Though his microphone had been cut, Mr. Leichty continued to speak about his upcoming program.

Later that day, another organizer of the conference told Mr. Leichty that he was "out of the conference." In front of Mr. Leichty, the organizer told a colleague to call the police if Mr. Leichty attended the next day.

Undeterred, Mr. Leichty returned the next day. The college president told him to leave, but Mr. Leichty refused. College officials called the police, who arrived and arrested Mr. Leichty for trespass. He then sued Bethel College and the City of North Newton.

The court concluded that, under Kansas law, Leichty's paying the $100 registration fee gave him a contractual right to attend the conference, and that ejecting him could breach that contract:

The district court concluded that the college could revoke Mr. Leichty's license if he failed to act in good faith. And in the court's view, Mr. Leichty's conduct reflected a failure to act in good faith. We reject this reasoning because state law treated Mr. Leichty's license as irrevocable once he enrolled and paid the registration fee. See Wichita State Univ. Intercollegiate Athletic Ass'n v. Marrs (Kan. Ct. App. 2001) ("Although a license is generally revocable at the will of the licensor, an executed license—a license supported by valuable consideration—may not be revoked."); see also McKim v. Carre (Kan. 1905) (stating that "even an oral license may be irrevocable, where it is given for a valuable consideration and is acted upon by the licensee")….

Rather than question the irrevocable nature of the license, the college argues that further performance was excused when Mr. Leichty breached his implied obligation to act in good faith…. The breach of an implied covenant of good faith and fair dealing ordinarily entails a question of fact. Bethel College argues that the ordinary rule doesn't apply because Mr. Leichty indisputably breached the implied covenant of good faith and fair dealing by

• disregarding instructions to stop handing out flyers and
• standing up to promote his event during Bethel College's conference.

In our view, Bethel College's arguments entail questions of fact. Mr. Leichty acknowledges that he distributed flyers. But Bethel College implicitly assumes that its contract with Mr. Leichty prohibited him from passing out flyers on the campus.

When Mr. Leichty began handing out flyers, he was told to stop. He responded that he believed that he was entitled to hand them out. A factfinder could regard that belief as reasonable, for Bethel College hadn't said anything earlier about an inability to promote other events. A reasonable jury could thus find that

• Mr. Leichty had a good faith belief that he was entitled to distribute the flyers, and
• his refusal to stop had not amounted to a material breach of his duty of good faith and fair dealing.

The same is true for Mr. Leichty's comment at the conference. When Mr. Leichty stood, he was told to stay "on topic." But Mr. Leichty could reasonably view his comments as "on topic." After all, his comment concerned the Holocaust.

Mr. Leichty's comments did spark an outburst, and organizers cut Mr. Leichty's microphone as other attendees shouted at him. Bethel College contends that Mr. Leichty improperly continued to speak after his microphone had been cut. Mr. Leichty concedes that he added "a few more sentences without benefit of the microphone." Even so, we conclude that a reasonable jury could find that his continuing to speak did not constitute a material breach of his duty of good faith and fair dealing.

Nonetheless, the court held that, after the college kicked Leichty out and demanded that he not return, he could be properly arrested for returning:

Mr. Leichty argues that college officials lacked a contractual right to expel him from the conference. But Mr. Leichty's contractual right to attend the conference didn't vitiate Bethel College's right under property law to exclude him from the grounds. See Marrone v. Wash. Jockey Club of D.C. (1913) (concluding that a patron who purchases a ticket to an event has a contractual right to enter the premises, but the landowner maintains a property right to exclude the patron). When the college told Mr. Leichty to leave the premises, he incurred an obligation to leave and "[h]is only right was to sue upon the contract for the breach." …

We remand for further proceedings on the contract claim against Bethel College.

The case has since settled, for a payment to Leichty of $50,000. For more backstory, here's an excerpt from the district court's description of the facts:

Plaintiff planned to moderate an event he organized at a nearby community room in North Newton on the evening of March 16, 2018. The main speakers were to be two individuals, both Jewish, whom Plaintiff knew to be extremely pro-Palestine regarding the Palestine/Israeli conflict. Plaintiff's concern, which he believed these two individuals shared, was that "the Holocaust was being exploited in modern day America … as a carte blanche, if you will, for all sorts of conduct by — whether it be Israel or Zionists or other elite Judaics [—] that they would trot out the anti-Semitism/Holocaust card whenever it was convenient."

Prior to the Bethel conference, Plaintiff contacted Paul Schrag, the editor and publisher of Mennonite World Review, an independent journalistic ministry in Kansas, and requested that he publish Plaintiff's classified advertisement about his event at the community room in the March 12, 2018 edition of Mennonite World Review. Schrag rejected the ad. Plaintiff then sent Schrag a pamphlet explaining "Holocaust revisionism" in an effort to change his mind, but Schrag still refused to publish the ad. Schrag then emailed the organizers of the Bethel conference — John Sharp (Hesston College employee), John Thiesen (Bethel College employee), and Mark Jantzen (Bethel College employee) — informing them of Plaintiff's plan to hold an event and attaching the pamphlet….

On March 16, the first day of the Bethel conference, Plaintiff brought with him the two speakers who were scheduled to speak at his own event. Neither of them had pre-registered for the Bethel conference and Jantzen denied Plaintiff's request that they be granted access to the conference. According to Plaintiff, Jantzen indicated his decision might be revisited the following day. After Plaintiff checked in, he began passing out flyers about his event ("Two Revisionist Jews Consider the Holocaust") scheduled for that evening….

UPDATE: I originally erroneously wrote that the Tenth Circuit concluded that the ejection breached the contract; I've corrected that to reflect that the court concluded the ejection could breach the contract, but remanded to the District Court to consider that. My apologies for the error.