Duluth's park preachers get legal thumbs-up

  • Article by: DAN BROWNING , Star Tribune
  • Updated: December 20, 2011 - 11:02 PM

Federal judge says Duluth can't interfere with free speech rights in waterfront park, despite its lease to a private party.

There is a place for Christ in the Christmas display on Duluth's waterfront park, a federal judge ruled Tuesday.

Chief U.S. District Judge Michael Davis issued a sweeping order Tuesday barring the city from "interfering with or prohibiting" two street preachers or others from peacefully distributing literature, displaying signs and talking with people about their faith at the massive Bentleyville Tour of Lights in the city's Bayfront Park. Davis' order applies not just to religious speech, but all other speech protected by the First Amendment to the Constitution.

The order is a victory for the street preachers who filed suit against the city last month. Peter Scott, a lay preacher from Hibbing, claimed he was forbidden from preaching to passersby during the Bentleyville display last year after some event organizers said "people don't want to hear religious crap." Steve Jankowski, a Duluth minister, said he was warned he could be arrested for trespassing if he resisted a request by event organizers to leave.

The Tour of Lights is sponsored by a private, tax-exempt organization. According to the group's website, it began in 2001 when Nathan Bentley decorated his house in Esko, Minn., then migrated to Cloquet and eventually to Duluth. The event grew more complex by the year and became a popular local attraction featuring live entertainment, fire pits, popcorn and cookie "huts," and, of course, Santa Claus.

The display at Bayfront Park consists of non-religious, holiday-themed sculptures -- Santa Claus, the North Pole, Christmas trees and the like -- illuminated with about 3 million lights. The group's rules ban unauthorized advertising, political campaigning and "religious preaching or public attempts to convert others' beliefs."

Nathan Bentley declined to comment.

In court last week, M. Alison Lutterman, a deputy city attorney, argued that the city's contract with the Bentleyville organizers implicitly granted them exclusive control over the event. As such, she said, they had a common-law right to enforce their own rules. If people violate the rules, she said, city police have little choice but to respond and enforce the trespassing laws.

Lutterman did not respond Tuesday to requests for comment on Davis' ruling. But City Attorney Gunnar Johnson called it "a very thorough and thoughtful opinion" and said the city would comply.

City's deal may change

Johnson indicated the dispute might return to the courts.

"Bentleyville runs till the 26th of December. After that, there may be some modifications to the contract between the city and Bentleyville," he said.

The preachers' attorney, Jonathan Scruggs of Memphis, Tenn., had argued that the public retains its rights to free speech and freedom of religion while attending a public event on public property. But he acknowledged that the city and the Bentleyville group could alter the contract to try to get around Davis' ruling.

"We would then evaluate that," said Scruggs, who works with the Arizona-based Alliance Defense Fund, which advocates for religious freedom. "We take them as they come."

Under the current circumstances, Magistrate Judge Leo Brisbois sided with Scruggs and recommended Davis issue a preliminary injunction against the city. Davis issued his own 23-page analysis of the arguments and did just that.

Davis noted that the plaintiffs and defendants disagree whether a traditional public forum, like a park, may lose its public character when rented or controlled by private entities. "The law in this area is not as clear as either party asserts," he wrote.

He said the U.S. Supreme Court "has indicated that a municipality may not destroy the 'public forum' status of streets and parks." But logic dictates that groups may exert temporary control over public areas during certain private events, such as wedding receptions.

Davis' ruling remains in force throughout the Bentleyville group's contract with the city, which expires in 2013, or until a further order from his court.

Preachers plan to return

The preachers will now move for a permanent injunction.

"We're excited to essentially return the First Amendment to Bayfront Festival Park," Scruggs said.

He declined a reporter's request to interview the preachers, noting that the lawsuit will remain active at least until the permanent injunction motion is resolved. They have every intention of returning to Bentleyville "at some point this week," Scruggs said.

"They've gone in the past. They want to go in the future. So it's their intention to do so," he said.

Dan Browning • 612-673-4493

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