Forum Right, 2/21/12

Can’t Rent Out Your Rights

By A.J. Wagner

It is seldom as easy as saying “I have Constitutional right!” because the likely response is, “So do I!” When a court hears these two statements, or something similar, a fair amount of analysis is brought to bear on the two sides with the outcome dependent on facts.

So, when a right to contract faces the right to free speech on government property, we get an analysis. Using the case of Bays, et al. v City of Fairborn, et al., recently decided by the United States Court of Appeals for the Sixth District, we can take a look at such an analysis.

The Fairborn Arts Association (FAA) and the Fairborn Lions Club (Lions Club) agreed, by contract with the City of Fairborn (Fairborn) that a city park could be rented for the Sweet Corn Festival. The FAA and Lions Club agreed that promotion, conduct, registration, fund raising and other festival-related issues were their responsibility. Fairborn agreed to put up festival banners, provide picnic tables and bleachers, and supply general labor. The park was to remain free and open to the public during the Festival.

Booth space for those wishing to sell merchandise, food, or arts and crafts was made available for a fee. Vendors were told that there should be no sales or soliciting of causes outside of the booth space.

Tracey Bays and Kerrigan Skelly planned to meet at the park during the festival to express their religious views to whoever would listen. Bays wore a 2’ x 2’ sandwich board that said, “Jesus is the Way, the Truth and the Life. John 14:6” on the front and “Are you born again of the Holy Spirit?” on the back.

Bays was asked by a festival worker to remove his sign or leave the park. Bays failed to obey the request. He was then approached by an official of the Fairborn Parks and Recreation Department, who told Bays he could not display a sign or distribute literature in the park. Bays found Skelly to talk with him about the matter when they were approached by three Fairborn police officers. Bays and Skelly were told by the officers that they could not display signs or hand out literature without a permit, and that they would be arrested for criminal trespassing if they did not stop such activities. Bays and Skelly left the park and filed suit to enjoin Fairborn to allow them to preach in the park during the festival.

The court noted that on the claim of Bays and Skelly, the first question is “whether the solicitation policy and its enforcement should be considered state action attributable to Fairborn. If there is state action, the question then becomes whether the solicitation policy is constitutional under the First Amendment.”

It matters if this was a government action. Fairborn argued that FAA and the Lions Club are private entities and they made the rules. The court noted that a Fairborn official asked Bays and Skelly to leave and the city police made the threat to arrest them if they didn’t. That, the court noted, is state action.

The constitutionality of the solicitation policy must then be analyzed in three steps. The first step is to determine whether Bays’ and Skelly’s conduct is protected speech. Even Fairborn could not dispute that the expression of religious belief by pamphlet, sign or conversation is protected by the First Amendment of the United States Constitution.

The next step, then, is to determine if the festival is public or private, because the extent to which the Government may limit access depends on that. A public park, both sides agreed, is open to public assembly. But can Fairborn turn it into a private space by contract?  Maybe, but not when the sponsored event is free and open to the public. A public event in a public park is exactly where free speech is expected and protected.

But, Fairborn argued, government can limit the time, place and manner of communication. This would be true if the restrictions placed on the speakers served a “significant government interest.” Fairborn told the court its significant interest was crowd control and flow of pedestrian traffic. The court said there is no proof of need for crowd or flow control. The place wasn’t crowded.

In Berger v. City of Seattle, the United States Supreme Court said, “[W]e cannot countenance the view that individuals who choose to enter [parks], for whatever reason, are to be protected from speech and ideas those individuals find disagreeable, uncomfortable, or annoying.”

A city can rent a space where speech can be limited. But when that space is public, remains open to the public and is patrolled and controlled by public officers, there must be a significant reason for control of speech. Otherwise, free speech triumphs.

I’m sorry if that bothers my friend on the other side.

A.J. Wagner is a retired judge who is trying to decide what to be when he grows up. Reach DCP freelance writer A.J. Wagner at

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A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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