Federal Court Can't See Any First Amendment Implications In Local Ordinance Blocking The Photography Of Children

from the I-guess-a-law-is-good-if-it-makes-something-illegal dept

You can't always pick your fighter for Constitutional challenges. Sometimes you're handed an unsympathetic challenger, which makes defending everyone's rights a bit more difficult because a lot of people wouldn't mind too much if this particular person's rights are limited. But that's not how rights work.

A pretty lousy decision has been handed down by a Minnesota federal court. A challenge of two laws -- one city, one state -- has been met with a judicial shrug that says sometimes rights just aren't rights when there are children involved. (h/t Eric Goldman)

The plaintiff is Sally Ness, an "activist" who appears to be overly concerned with a local mosque and its attached school. Ness is discussed in this early reporting on her lawsuit, which shows her activism is pretty limited in scope. Her nemesis appears to be the Dar Al-Farooq Center and its school, Success Academy. Ness feels there's too much traffic and too much use of a local public park by the Center and the school.

Here's how she's fighting back against apparently city-approved use of Smith Park:

Ness has taken it upon herself to document activity at site. That includes maintaining a public blog and Facebook page all about the “DAF/Success Academy controversy,” complete with photos and video of street traffic, kids being dropped off at school, and people otherwise going about their business.

Her legal representation in this lawsuit isn't that sympathetic either.

The American Freedom Law Center, which claims that “the battle for America’s soul is being waged in the courtrooms across America” against “secular progressives and Sharia-advocating Muslim Brotherhood interests,” is co-counseling the case. The Southern Poverty Law Center calls that organization’s co-founder David Yerushalmi an “anti-Muslim activist” and “a leading proponent of the idea that the United States is threatened by the imposition of Muslim religious law, known as Shariah.”

Her lawyer says this has nothing to do with the school's religious affiliation. Her co-counsel, David Yerushalmi, disagrees.

In a statement, he says Ness’ predicament is just “another example of encroachment on our liberties when Islam is involved.”

Ness became involved when the mosque opened its school and obtained a Conditional Use Permit for Smith Park that allowed students to use it during school days. Ness believes the permit is being violated on a daily basis by students' "excessive" use of park facilities that makes it "impossible" for nearby residents to use it at the same time.

To document these supposed violations, Ness has approached children in the park and parked across the street to take photographs/record DAF students using the park. She had two run-ins with local law enforcement before filing her lawsuit. After the most recent law enforcement encounter, Bloomington police attempted to charge Ness with felony harassment, but the Hennepin County Attorney's office declined to bring charges against her. Bloomington prosecutors also declined to prosecute Ness.

Ness sued, claiming the laws cited infringed on her Constitutional rights and that the ongoing threat of prosecution has resulted in her curtailing her documentation of park use by the school.

The problem is the laws. Ness' behavior is problematic but it shouldn't be criminally problematic. First, the state's harassment law -- as quoted in the court's opinion [PDF] -- does not require prosecutors to prove intent.

Subdivision 1. Definition. As used in this section, “harass” means to engage in conduct which the actor knows or has reason to know would cause the victim under the circumstances to feel frightened, threatened, oppressed, persecuted, or intimidated, and causes this reaction on the part of the victim regardless of the relationship between the actor and victim.

Subd. 1a. No proof of specific intent required. In a prosecution under this section, the state is not required to prove that the actor intended to cause the victim to feel frightened, threatened, oppressed, persecuted, or intimidated, or except as otherwise provided in subdivision 3, paragraph (a), clause (4), or paragraph (b), that the actor intended to cause any other result.

Then there's an additional ordinance -- one put in place by the city of Bloomington after Ness' two run-ins with the local PD -- that criminalizes Ness' documentation of park activities.

(24) No person shall intentionally take a photograph or otherwise record a child without the consent of the child's parent or guardian.

This is amazingly broad. It criminalizes journalism and the recording of criminal acts by minors. This revision appears to have been crafted solely to target Ness and her activism. Ness was also a frequent commenter at Bloomington city council meetings until filing this lawsuit.

The court says Ness has no standing to challenge the laws. According to the judge, she does not face a credible threat of prosecution. The decision cites the two refusals to prosecute, as well as prosecutors' statements on the issue.

Ness claims she intends to monitor an issue—the non-compliant use of DAF’s facilities and the use of Smith Park—by filming and photographing the activity in the physical vicinity of DAF, which may include filming and photographing people. Compl. ¶¶ 36, 47, 70, 71; Ness Decl. ¶¶ 6, 18, 28. Ness does not claim a desire to surveil individuals or track their location by filming or photographing them once they leave DAF’s neighborhood. As Ness herself has stated, “I try to make this as not about people . . . . It’s not specifically about an individual. It’s about the City collectively not doing their job.” Jones Decl. Ex. 1 at 18:49–18:53. Thus, as the County Attorney and the City both acknowledge, Ness’ intended conduct is not proscribed by the Harassment Statute because she is not tracking or monitoring a particular individual.

But then the court goes on to quote police officers' implicit threats of arrest as evidence Ness won't be subjected to further law enforcement scrutiny or prosecution.

Ness relies on the police report from the incident, which states that Officer Meyer “asked [Ness] to stop filming,” and that “Ness was advised that she could be charged with harassment if the parents and principal felt intimidated by her actions.” Compl. ¶ 54. However, the bodycam footage of the encounter establishes that Sgt. Roepke expressly told Ness “this is a public place, . . . you have a right to . . . take pictures in a public place or video or, or anything like that. There’s not an issue with that. . . . [B]ut if you’re doing it in a means to intimidate them or to harass them, then it becomes a problem.” Jones Decl. Ex. 3 at 1:50. Sgt. Roepke also told Ness “if you want to take some pictures, come and take some pictures and then move on.” Id. at 7:50. When Ness described the August 2019 encounter to Detective Bloomer months later during her interview, Ness stated that Sgt. Roepke “clarified” Ness’ conduct was not harassing behavior, and told her to “be careful and read the statute.” Jones Decl. Ex. 5 at 36:22–36:43. The police report of the August 2019 incident, particularly when viewed together with Sgt. Roepke’s statements and Ness’ own recollection of the incident, does not rise to the level of a credible threat of prosecution. Ness’ decision to chill her speech, after being told by Sgt. Roepke that she had a right to take videos and that her conduct was not harassing behavior, was not based on an objectively reasonable fear of prosecution.

Unfortunately, this supposedly "unreasonable" fear of prosecution stems directly from the law, making it a lot more reasonable than the court says. Prosecutors do not have to prove intent. And, as the officer stated clearly, all it would take is for subjects of Ness' recordings to feel harassed. It doesn't matter whether or not Ness intended to harass anyone. That's pretty open-ended and that makes her fear of prosecution a lot more reasonable.

The court agrees Ness has standing to sue the city of Bloomington over its ban on filming children.

The City Defendants argue that “[e]ven if Ness had standing to sue, her facial challenge to the ordinance under the first Amendment would fail.” City Defs.’ Mem. Supp. Mot. Dism. [Docket No. 68] at 10 (emphasis added). However, the City Defendants’ briefing does not include an argument for why Ness might lack standing to challenge the City Ordinance. Ness’ intended conduct will include photographing and filming children in a City park without parental consent. This conduct is proscribed by the City Ordinance, and the City has not disavowed an intent to charge Ness with violating the City Ordinance if she were to engage in this conduct. Under these circumstances, Ness’ decision to chill her speech due to the existence of the City Ordinance is objectively reasonable. Ness has standing to challenge the City Ordinance.

But it says she has nothing to sue about because the ordinance does not affect her First Amendment rights.

Here, the City Ordinance makes no distinction based on who is the photographer or recorder, what use will be made of the photograph or recording, or what message will ultimately be conveyed. Because the limitation on its face does not draw distinctions based on a speaker’s message or viewpoint, it is content neutral.

Neutral, except as to the content of the recordings, which is what's targeted by the city's ban. But the court says the definition of "content" hinges on what the speech conveys, rather than what it contains.

Ness also points out the ordinance is unconstitutional because it fails to do what it purports to do: protect children from being recorded. The court disagrees, saying the ordinance is adequate enough to achieve its aims.

Ness argues that the City Ordinance is underinclusive because if a person takes a step outside a City park and films children from the street, the City Ordinance will not be violated. Ness contends this underinclusiveness undermines the City’s claimed interest in protecting children’s privacy and preventing them from being exploited or intimidated. However, requiring would-be recorders to collect images from a distance, rather from inside a City park, makes it less likely that a child in the park will feel frightened or that the child’s identity will be ascertainable. Thus, the City’s important government interest in protecting children is not undermined by allowing a person to record children from just outside a City park’s boundaries.

Finally, the judge says the ends justify the means. The judge appears to believe laws are "narrowly tailored" if they accomplish what they set out to do.

As discussed above, the City Ordinance promotes the important government interest in regulating the competing uses of City parks and protecting children’s privacy and sense of safety and freedom from intimidation while playing in a City park. This interest would be achieved less effectively without the City Ordinance. The City Ordinance is narrowly tailored.

Sure, and the city's attempts to achieve other interests would undoubtedly be more effective if the Constitution didn't exist. But it does. And the court is supposed to be a check against government overreach, not an enabler of government efficiency.

The lawsuit is dismissed. The court says Ness can film kids from outside of the park's boundaries without fear of prosecution. Of course, this is what Ness was doing when she was approached by officers who told her to "take her photos" and "move on." Even if Ness complies with the terms of the ordinance the city appears to have passed just to stop her from doing what she was doing, she still faces the possibility of being subjected to further police action. And even if prosecutors refuse to press charges, there's still the hassle of the arrest, and the loss of time and freedom during the detainment. These harms aren't imaginary. The law written to make it more difficult for one Bloomington resident to engage in documentation of perceived permit violations stays on the books.

Most people will probably be fine with this outcome. After all, it mainly affects someone whose interest in park usage seems to be primarily motivated by bigotry. This is all but confirmed by her choice (or acceptance) of the American Freedom Law Center's legal representation. But bad people can still raise legitimate Constitutional complaints. This isn't a victory for Bloomington. It's a loss for its residents who are subject to a badly written law. Even if they have no desire to violate the ordinance, the law can still be wielded against citizens engaged in legitimate activities (like news gathering), thanks to this court's support.

Filed Under: 1st amendment, activist, children, free speech, photography, privacy, sally ness

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  1. icon
    Samuel Abram (profile), 31 Jul 2020 @ 9:48am

    This is why I love Techdirt

    You put principles above all, and will defend them even if despicable people are the beneficiaries.

    No wonder I pay you guys every month; you deserve every penny!

    reply to this | link to this | view in thread ]

  2. icon
    Stephen T. Stone (profile), 31 Jul 2020 @ 10:15am

    The court all but handed Ness a unassailable win on a silver platter if she ever gets arrested for taking photos of kids. I see no way this law could stand up to scrutiny if a court ever tests its constitutionality. And that would make her arrest (and any arising prosecution) unconstitutional, too. A civil case based on that outcome would be a slam dunk win that only a first-year law student or Richard Liebowitz could fuck up.

    reply to this | link to this | view in thread ]

  3. icon
    That One Guy (profile), 31 Jul 2020 @ 10:27am


    The problem is that even if she wins that's still a hell of a lot of time and likely even more money that will be required to go to court and defend herself, and those costs alone present a worrisome issue.

    Much like SLAPP suits sometimes you don't have to win the legal case to achieve your objective, the threat, either implied or explicit can do the trick.

    reply to this | link to this | view in thread ]

  4. identicon
    it would, 31 Jul 2020 @ 10:31am

    Let's say someone with a child was committing a crime eg robbing a car or selling drugs it would be illegal for a journalist to photograph them.
    If there's a crowd with some children in it
    would be illegal to take a photo.
    In some cases this could make news reporting illegal.

    reply to this | link to this | view in thread ]

  5. icon
    That One Guy (profile), 31 Jul 2020 @ 10:32am

    'The law is very specific, aimed at one person in fact.'

    You'd think the fact that the law was specifically tailored to go after a single person after two previous attempts to press charges failed would be enough to show just how unacceptable the law was, but I guess when all you care about is getting the outcome you want any steps taken in that process are considered fine.

    reply to this | link to this | view in thread ]

  6. identicon
    NoLongerBreathedIn, 31 Jul 2020 @ 10:41am


    Correction: Only Liebowitz. Almost any 1L would have a prettying easy time.

    reply to this | link to this | view in thread ]

  7. icon
    Koby (profile), 31 Jul 2020 @ 10:47am


    (24) No person shall intentionally take a photograph or otherwise record a child without the consent of the child's parent or guardian.

    In recent years, we have documented how police attempt to escape accountability by preventing citizens from photographing or videotaping them. Fortunately, those sorts of anti-recording laws have been found unconstitutional.

    But maybe this could be a loophole. If the police simply hire some new cops that look young enough...

    reply to this | link to this | view in thread ]

  8. icon
    Stephen T. Stone (profile), 31 Jul 2020 @ 11:13am

    I hope you’re pointing out that loophole so it will be closed instead of exploited.

    reply to this | link to this | view in thread ]

  9. identicon
    Abby Normal, 31 Jul 2020 @ 12:12pm

    Another concerning photography restitution:

    • (11) Commercial use and photography. No person shall:

      (B) Operate a still, motion picture, video, or other camera for commercial purposes in a park without a permit approved by the city.*

    reply to this | link to this | view in thread ]

  10. identicon
    Anonymous Coward, 31 Jul 2020 @ 12:27pm

    And, as the officer stated clearly, all it would take is for subjects of Ness' recordings to feel harassed.

    And all it would take to make a violation would be for the subjects to say they felt harassed. Note that there is no "reasonable person" test involved.

    So "harassment" could be as little as "carrying a boombox while black", or "he stopped me from defacing a statue" or even "he wouldn't stop looking at me from across the park".

    reply to this | link to this | view in thread ]

  11. identicon
    Anonymous Coward, 31 Jul 2020 @ 1:18pm

    And all it would take to make a violation would be for the subjects to say they felt harassed.

    All it would take is for the cops to ask/tell a subject to say they felt harassed.

    reply to this | link to this | view in thread ]

  12. icon
    JoeCool (profile), 31 Jul 2020 @ 4:58pm


    Commercial filming has long required a permit almost everywhere. Lots of indy films skirt those ordinances to cut costs, doing things like filming at night, and/or in places that lack police patrols.

    reply to this | link to this | view in thread ]

  13. icon
    mhajicek (profile), 31 Jul 2020 @ 10:44pm


    For an officer to say that an anonymous person said they felt harassed.

    reply to this | link to this | view in thread ]

  14. icon
    Ed (profile), 1 Aug 2020 @ 10:49am

    Turn it around...

    Maybe someone should start investigating/photographing her. Follow her night and day, documenting her every move, every person she contacts. Surely she wouldn't object?

    reply to this | link to this | view in thread ]

  15. identicon
    Anonymous Coward, 1 Aug 2020 @ 1:57pm

    Re: Re:

    That's largely because it is disruptive. I can see a challenge if they try to enforce that with a non-disruptive small-crew film.

    reply to this | link to this | view in thread ]

  16. identicon
    Anonymous Coward, 1 Aug 2020 @ 1:59pm

    Re: Turn it around...

    That would assuredly constitute harassment, and is a major escalation, not a "turning it around". That can be accomplished by recording her every time she is recording at the park.

    reply to this | link to this | view in thread ]

  17. identicon
    GeeROGSji, 3 Aug 2020 @ 12:25pm

    Minnesota agencies, ranging from its notorious BCA, to its equally nefarious “Crimes Agianst Children” task farces are actually DISTRIBUTING chiild pornography.

    They use it to “catch(entrap) suspected pedophiles, but also use it via "code injection” into legitimate porn queries on Google.

    Its part of a nationwide opetation.

    This misguided attempt to find, and prosecute pedophiles,ALWAYS overlooks,state agents, and agencies who profit from exploiting the narrative of “safe” children.

    Its a billions per year industry, and that state is fundd nearly 50%by federal “childrens dollars.”

    Nothing new here.

    reply to this | link to this | view in thread ]

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