Judge rules against Salmon Days ‘expression areas’
October 4, 2011
By Warren Kagarise
City and Salmon Days Festival officials could not prevent a man from distributing religious literature at the Oct. 1-2 festival, a federal judge ruled days before the event.
Paul Ascherl handed out more than 600 Christian tracts to festivalgoers on both days. The leafleting came after Judge Marsha J. Pechman ruled the “safety and congestion concerns” related to the Salmon Days leafleting ban “are likely speculative,” and issued a preliminary injunction to stop city and festival officials from enforcing the ban if Ascherl decided to distribute religious literature.
In a lawsuit filed in U.S. District Court in Seattle, Ascherl said Issaquah police officers threatened to arrest him for handing out similar literature last year in places outside a pair of downtown “expression areas” on festival grounds. In the August lawsuit, attorneys said Ascherl, a Snoqualmie resident, relocated to the “expression areas” after police and a festival official intervened.
Issaquah officials created a city ordinance 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 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 a Sept. 21 ruling, Pechman dismissed concerns about unscheduled activities as a cause for congestion.
“The city allows people to dress up in animal costumes, carry large signs, purchase and eat food, and perform music on its downtown sidewalks and streets,” she said. “All of these activities are more likely to cause congestion than allowing Ascherl and others to distribute literature.”
Ascherl is seeking a court order declaring the ordinance unconstitutional, plus “nominal damages” and compensation for legal fees.
Salmon Days organizers direct people distributing leaflets, political candidates and other unscheduled activities to “expression areas” at the downtown festival.
Pechman also denied a request by city attorneys for more time to file a brief in response to Ascherl’s legal challenge.
“While the public interest in maintaining a free exchange of ideas has in some cases been overcome by a strong showing of other competing public interests (for example, the safety and security of a nuclear testing site), no such showing is made here,” she said.
Issaquah ‘expression areas’ present a ‘very unique’ challenge
Attorneys from the Alliance Defense Fund, a legal advocacy group based in Scottsdale, Ariz., represented Ascherl in federal court.
“Really, what’s at stake here is the fundamental right of a citizen to share his or her beliefs in public, and that’s exactly what was taken away from Mr. Ascherl and exactly what was granted back to him by virtue of the court’s order,” Alliance Defense Fund Senior Counsel Nate Kellum said.
Salmon Days organizers defended the “expression areas” as a way to control litter and limit congestion. The city considers violations as misdemeanors punishable by fines and possible imprisonment.
“I’ve seen ‘expression areas’ in context of political conventions where they had things that were set up particularly for protests, but I’ve never seen ‘expression areas’ set up for literature distribution, nor have I seen it set up as part of a public festival,” Kellum said. “In that sense, I think Issaquah was very unique.”
The ordinance did not apply to Ascherl during Salmon Days due to Pechman’s preliminary injunction.
“It went very well,” he said the day after the festival concluded.
City Attorney Wayne Tanaka said the issues related to leafleting at Salmon Days stem from concerns about large numbers of people passing out literature on festival grounds.
“The issue has never been about Mr. Ascherl,” he said. “One individual who is very unobtrusive as far as passing out literature is obviously not going to cause a problem, and we never suggested that it would. The law, we believe, allows us to judge the ordinance as if everybody did it.”
Tanaka planned to brief the City Council in a closed-door executive session Oct. 3.
“I think the city has a difficult case, given how Judge Pechman has ruled,” he said.
The city could redraft or amend the ordinance, settle the case or proceed to trial. The lack of updated information about leafleting at Salmon Days poses a challenge to both sides.
“It’s been 10 years since we’ve had any leafleting and, consequently, no one has any current information about what happens,” Tanaka said.
Warren Kagarise: 392-6434, ext. 234, or firstname.lastname@example.org. Comment at www.issaquahpress.com.