Forum Center, 2/21/12

Fairborn’s Free Speech Fiasco

Every August, Fairborn, Ohio is the home of the annual Sweet Corn Festival. The festival is held at Community Park in Fairborn and is sponsored by the Fairborn Art Association and the Fairborn Lions Club.  In 2009, two men, Tracy Bays and Kerrigan Skelly, attended the festival and attempted to display signs and disseminate flyers promoting their religious beliefs. They were stopped in their effort by the Fairborn Parks and Recreation Department Superintendent, Peter Bales, and the Fairborn Police. Brays and Skelly were informed that they must stop their efforts to promote their religious beliefs or face arrest. To avoid arrest they stopped their activity and voluntarily left the park.

In 2010, Brays and Skelly filed a lawsuit in Federal Court arguing that their First Amendment rights had been violated by the City of Fairborn. The Federal District Court ruled against Brays and Skelly, dismissing their complaint against the City of Fairborn and its employees.

Last week, the U.S. 6th Circuit Court of Appeals’ three-judge panel ruled unanimously that a festival policy against solicitation from individuals who were not working at a booth was too broadly drawn, and as such was unconstitutional violating. The panel reversed the earlier decision by U.S. District Judge Thomas M. Rose from the Southern District of Ohio.

The Court may well be following precedent from a recent case involving the First Amendment. The circumstances of the Fairborn Sweet Corn case runs along a similar theme, but not nearly so outrageous as that played out in the U.S. Supreme Court case Snyder v. Phelps.  The Westboro Baptist Church is an Independent Baptist church known for its extreme stance against homosexuality. The church is headed by Fred Phelps and members of his large family. Widely described as a hate group, the church is best known for its protest activities, which include picketing funerals of American servicemen and desecrating the American flag. The church has become infamous for picketing at the funerals of American service men and women who were killed in Iraq and Afghanistan.

In response to the protests conducted by Westboro church, a number of state legislatures have introduced bills that would make it a felony to protest within 500 feet of a funeral.

On May 29, 2006, President George W. Bush signed into law the Respect for America’s Fallen Heroes Act (Pub.L. 109-228), prohibiting protests within 300 feet of the entrance of any cemetery under control of the National Cemetery Administration from 60 minutes before to 60 minutes after a funeral. Penalties for violating the act are up to $100,000 in fines and up to one year imprisonment.

When the Westboro Church picketed the funeral of Marine Lance Corporal Matthew A. Snyder at Westminister, Maryland, the Snyder family sued for defamation, invasion of privacy and intentional infliction of emotional distress.

The case was eventually decided by the U.S. Supreme Court. In an 8–1 decision, the Court ruled in favor of Westboro and Phelps on March 2, 2011. Chief Justice John Roberts wrote the majority opinion stating: “What Westboro said, in the whole context of how and where it chose to say it, is entitled to ‘special protection’ under the First Amendment and that protection cannot be overcome by a jury finding that the picketing was outrageous.”

Forum Question of the Week:

Should the City of Fairborn, through its agents, have the right to limit free speech when public property, such as Community Park, has been rented to private organizations to run a public function?

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