Salmon Days lawsuit could hinge on public safety
August 23, 2011
By Warren Kagarise
The legal challenge to city rules for leafleting at the Salmon Days Festival is focusing attention on unfettered freedom of expression in public places.
The lawsuit presents hurdles to the plaintiff, a Snoqualmie man, and the city, constitutional scholars said. The case is rooted in past court decisions about limits on freedom of expression and the steps governments can enact to limit such acts.
In a lawsuit filed in U.S. District Court in Seattle, Paul Ascherl said Issaquah police officers threatened to arrest him for handing out Christian literature in places outside the pair of downtown “expression areas” on festival grounds last year. Ascherl relocated to the “expression areas” after police and a festival official intervened.
“The suit presents some cognizable First Amendment arguments,” said David Hudson, a First Amendment scholar at the First Amendment Center in Nashville, Tenn.
Salmon Days featured “expression areas” near downtown festival entrances last year. The areas hosted local political parties and candidates for office.
“To First Amendment purists, free-speech zones are troubling because what you’re doing is you’re limiting speech by zoning it, you’re capping it to very small locations,” Hudson said.
The city could present the rule limiting leafleting as a safety issue necessary to maintain smooth pedestrian traffic at the crowded festival. City and festival officials have said they created the rule to address such safety issues.
Salmon Days attracted more than 180,000 people to downtown Issaquah in recent years.
“On the other hand, with a group that large, the government officials may be able to successfully argue that this is a way to both provide at least some protection for free speech while also keeping in mind public safety,” Hudson added.
In numerous rulings, the U.S. Supreme Court has decided state and federal governments may place reasonable restrictions on the time, place and manner of expression, as long as officials do not discriminate against particular beliefs.
“The government can, as long as they don’t discriminate on viewpoint and as long as they’re not using it as a subterfuge,” said Mark DeForrest, a Gonzaga University School of Law associate professor and First Amendment expert. “Essentially, we have a county fair and then we’re going to create a free speech zone 3 1/2 miles away in a city park that has nothing to do with the county fair, and if you want to do free speech at the county fair, you have to go to that free speech zone. Well, you’ve basically gotten rid of any free speech at the county fair. As long as they’re not trying to be tricky, as long as they’re not trying to evade the First Amendment requirements, there shouldn’t be a problem.”
Salmon Days organizers set up “expression areas” near festival entrances at West Sunset Way and Front Street South. The location is a key factor in the lawsuit against the city. Ascherl said in court documents he could not reach as many people inside the designated areas.
“It’s a question of the nature of the forum. If it’s essentially a closed forum, then the government is not going to be required to allow free speech there,” DeForrest said. “But if the government sets up forums, like these zones you’re talking about, where they say, ‘Here you can talk about X, Y, Z,’ then it’s perfectly acceptable.”
Safety is key issue in case
Jonathan Scruggs, litigation staff counsel at the Alliance Defense Fund, a legal advocacy group based in Scottsdale, Ariz., said the decision to single out people handing out leaflets is a problem. Scruggs and other attorneys from the Alliance Defense Fund represent Ascherl in the case.
“Quarantining freedom of speech to certain areas just does not comply with the First Amendment,” Scruggs said.
Salmon Days receives financial and logistical support from the city, and requires a municipal permit to operate.
“If you’re going to allow a person to sit there and eat his hot dog, or you’re going to allow people to line up in line or stand at booths, or to stand still and watch something — for example, you could have 10 people just standing still talking about football,” he said. “There’s no reason to allow those things, and yet ban a person from both standing and walking around with a pamphlet in his hand.”
Mayor Ava Frisinger said city officials created the legislation 11 years ago to address concerns about public safety as festival attendance climbed. In addition to banning leafleting in most areas at Salmon Days, the municipal ordinance also prohibits protests, unscheduled entertainment or nonprofit activities outside of booths and designated areas. Officials also raised concerns about leaflets leading to additional litter.
“In the interest of public safety, the police department wanted to add a chapter providing special rules for the festival,” she said. “It predominantly had to do with orderly movement of attendees in the most crowded parts of the area, and making safe and convenient circulation of pedestrian traffic as much as possible.”
Experts said the safety rationale could serve as a strong defense for the city.
“I can’t say for sure that there’s an insidious motive,” Hudson said. “Sometimes, it may be a way of balancing safety and speech, and making it easier to have certain areas that are off-limits. It could be a well-intentioned way to balance free speech with other safety issues. On the other hand, it could be a motivation to simply limit and marginalize speakers.”
The city could face a problem, however, if attorneys use language about litter to defend the ordinance in court.
“The Supreme Court has resolutely since the 1940s rejected that argument. Attempting to ban literature distribution in order to prevent litter is not narrowly tailored, because the person distributing literature is not littering,” Scruggs said. “If you want to ban litter, cite the people who are actually littering. That is not a persuasive argument, to say the least.”
Doug Honig, American Civil Liberties Union of Washington communications director in Seattle, said such restrictions on freedom of expression often raise concerns about stricter limits on First Amendment-protected activities.
“The right to freedom of speech is very strong in our society. In general, people have a right to pass things out and to talk to people,” he said. “If people stop, you don’t say, ‘Oh, you don’t have free-speech rights because people want to stop and talk to you.’”
Warren Kagarise: 392-6434, ext. 234, or firstname.lastname@example.org. Comment at www.issaquahpress.com.