Conflict over preaching in Duluth park returns to federal court

You know it's the holiday season in Duluth when the massive Bentleyville Tour of Lights sparks to life in Bayfront Festival Park -- and city attorneys find themselves locked in a constitutional battle in federal court.

They were back in court Wednesday, when a federal judge in Minneapolis sided for the second time in a year with two preachers who want the right to discuss their Christian faith at the event. An effort by the city of Duluth to block their access violates an injunction issued last year protecting their free speech rights to preach, Chief U.S. District Judge Michael Davis ruled.

And to head off any future attempts to stifle free speech, Davis modified his injunction to apply to all future Tour of Lights events unless he issues an order to the contrary.

The conflict began formally last year when Peter Scott, a lay preacher from Hibbing, and Steve Jankowski, a Duluth minister, alleged in a federal lawsuit that the city had prevented them from exercising their First Amendment rights to distribute religious literature and talk with people about their faith at the holiday event.

They obtained a sweeping order from Davis barring the city from interfering with their activities.

That appeared to settle the dispute.

But Duluth and the private, tax-exempt organization that sponsors the annual 3-million-bulb holiday display came up with a work-around. They drew up a new contract that gives Bentleyville Tour of Lights Inc. an "exclusive use permit" for the park.

Police directed Jankowski's friend, Michael Winandy, 23, of Duluth, to a designated "First Amendment Zone" that the city reserved in a parking lot next to the park.

Jankowski's lawyers sought to have the city found in contempt, while the city's lawyers sought to dismiss Davis' earlier injunction.

M. Alison Lutterman, an attorney for the city, argued that Davis had linked his previous injunction to a contract the city had with Bentleyville through 2013. By canceling that contract and drawing up a new one that grants Bentleyville exclusive use of the park, the city rendered the previous injunction moot, she said.

Lutterman said the city created a special free-speech area next to the park to avoid infringing on the public's constitutional rights. She noted that Davis had found such an arrangement acceptable last year in a dispute involving a Wisconsin lay preacher who wanted to distribute Bibles at the annual Twin Cities Pride Festival in Minneapolis.

Davis said the Eighth U.S. Circuit Court of Appeals set aside his ruling in that case, pending appeal.

Nathan Bentley launched the Tour of Lights in 2001 when he decorated his house in Esko, Minn. As it drew bigger crowds, it moved to Cloquet and then to Duluth, where it's now a popular local attraction featuring live entertainment, fire pits, food and, of course, Santa Claus. The waterfront display features non-religious, holiday-themed light sculptures.

Bentleyville's rules ban unauthorized advertising, political campaigning and "religious preaching or public attempts to convert others' beliefs."

Lutterman said Bentley's group paid $3,500 to rent the park. He should be able to create an event for people of "all faiths" without having to put up with Christians who want to "proselytize," she said, arguing that restraining his wishes would infringe on his free speech rights.

Jonathan Scruggs, a First Amendment litigator with the Alliance for Defending Freedom in Memphis, Tenn., said the city was trying to rely on "magic words" by declaring the festival an "exclusive" event.

"Mere words don't change the forum's status," he said. "It's reality that matters."

Davis agreed. He wrote that granting Bentleyville exclusive use of the park has no bearing on the plaintiffs' First Amendment rights. He declined to find Duluth in contempt, however, concluding that his earlier injunction was open to misinterpretation.