First Amendment Clash Brewing Over Gay Pride Festival in Minneapolis

Must an expressive association that paid for a permit in a public park to advance its message include someone using the event to convey an opposing message? Specifically, must an anti-gay preacher and others be allowed to condemn homosexuality in signs and literature by roaming the permit grounds of a gay-pride celebration?

For more than 30 years, gay-rights organizers have annually paid for a permit to hold a gay-pride festival in a small park near downtown Minneapolis.  Last year this cost amounted to more than $36,000 in fees and proceeds paid to the Minneapolis Park and Recreation Board (MPRB), which is run by elected commissioners.  More than 400,000 people attend the 2-day festival. The non-profit and mostly volunteer group that runs and pays for the event, Twin Cities Pride (TCP), does so in order to celebrate “Pride,” and to promote equality and acceptance for GLBT people.

Other gay-supportive organizations and vendors are required to distribute literature and display signs only from individual booths, which are approved by TCP if their message is consistent with the Festival message. Other restrictions are imposed to limit littering (for which TCP is responsible) and to maintain crowd control and pedestrian flow. The booths are charged fees that help defray the cost of post-event cleanup, the permit fees, insurance, and contribute significantly to TCP’s annual budget.

This year, an anti-gay activist and preacher named Brian Johnson and his family have insisted that they be given access to the permit grounds during the hours of the festival in order to display signs, distribute literature, and peronally counsel attendees with an opposing  message: that homosexuality is sinful and must be condemned rather than accepted.  Johnson was arrested for trespass last year after he confronted some festival-goers with his message of repentance and condemnation.

Facing potential litigation, the MPRB agreed to the demands of Johnson’s lawyers at the Alliance Defense Fund, one of the most active litigation outfits opposing gay equality around the country. In response, TCP is threatening its own lawsuit against the MPRB.

The basic claims are these. On the one hand, Johnson claims a First Amendment right to enter a park ordinarily open to the public in order to express his views condemning homosexuality. He says this includes the right to move around the permit grounds among the crowd distributing literature and displaying signs.  He cites some appellate and lower court decisions that have indeed allowed persons with anti-gay messages, under some circumstances, to enter the areas of gay-pride celebrations.

On the other hand, relying on the Supreme Court’s decision in Hurley v. GLIB (allowing permit-bearing Irish parade to exclude gay contingent), TCP claims that it cannot be forced to include speech from an active participant — one who distributes literature and displays signs — whose message is diametrically opposed to its own within the boundaries and during the times in which it has obtained a permit to craft its own message of acceptance of homosexuality. His active presence on the festival grounds may mistakenly be perceived as reflecting TCP’s judgement that his religious views are worthy of presentation as part of a range of views about homosexuality or to express a liberal tolerance for messages of condemnation. It would be impractical to disclaim the message of one or more moving counter-speakers. (Disclosure: I have advised Twin Cities Pride on the matter.)

I may have more to say as this develops. I’ve left out a lot of details, some that don’t matter much and some that may end up mattering a lot.