The Federal 8th Circuit has declared a 2019 Bloomington law unconstitutional...and that could cost us a bunch of money.
Minnesota is in the Federal 8th Circuit. Appeals of any court decisions in Minnesota go to the 8th Circuit.
In 2019, a group of citizens who objected to over-use of Smith Park, a public park owned by Bloomington, MN, began to collect evidence that the adjoining mosque, Dar al Farooq, dominated use of the park. Part of the evidence was pictures of recess use of the park by students at Dar al Farooq's schools. The City of Bloomington passed a city ordinance, Section 5.21(23) of the City Code, specifically because these pictures were taken. The new city ordinance made taking pictures of children in city parks without their parent's consent a misdemeanor crime.
The neighborhood group objected and filed suit under Federal Law 42 U.S. Code, Section 1983, a civil rights law. (See the original legal Complaint ). Sixteen journalistic organizations filed a joint friend-of-the-Court brief supporting the neighborhood association, but the Federal District Court in Minnesota threw the lawsuit out. The neighborhood appealed. Last week, the 8th Circuit overruled the District Court and declared the Bloomington law unconstitutional.
The lawsuit was fought by the American Freedom Law Center. Constitutional lawyer Robert Muise argued the case. You can find more legal details on their website CLICK HERE.
The case is important to residents of Bloomington because our city council could have let us in for some hefty legal bills. As of press time, we do not know if the plaintiff plans to seek attorneys fees, but 42 USC 1983 allows a winning plaintiff to claim attorney's fees. Fees for an appeal by a lawyer of Muise's national standing could come to tens of thousands of dollars. Under some circumstances, the law also allows the Plaintiff to ask the court to impose punitive damages to discourage the unconstitutional behavior. There is no cap at all on potential punitive damages - the Federal law was originally passed to strongly discourage southern cities from discriminating against black citizens.
The actions of our city council are particularly irresponsible because it was clear from the beginning that taking pictures in a public park is one of the most heavily protected types of speech. Parks are what is called 'traditional public forums', where free speech receives the strongest protection from government interference. The US Supreme Court ruled long ago that if taking pictures were part of an effort to speak, particularly if the pictures were going to be part of a First Amendment petition to the government for or against some government action, as the pictures in question here were, then the pictures constituted speech - because without the evidence there could be no effective petition to the government for redress of the underlying wrong. This is why the news media filed their friend of the court brief; they wanted to invoke this long-standing Supreme Court position in order to ensure a free press was not hampered in our city by the council's unconstitutional action.
Our City Council's adoption of the no-pictures ordinance was very ill-advised given the legal precedents in play here. If we the citizens of Bloomington have to pay some hefty legal fees and punitive damages, thank all the city council members who voted for this unconstitutional law.