Athens, GA - The NPPA along with several other groups joined an RCFP amicus brief in Ness v. City of Bloomington, a case before the 8th Circuit. This case was brought by Ness, a Bloomington, Minnesota, resident who began documenting a public controversy surrounding the Dar al-Farooq mosque and Success Academy school, which are located in her neighborhood, by videotaping and photographing various activities related to the mosque and school, including their use of a city park as a playground. Ness challenges the constitutionality of a Bloomington city ordinance that applies only in city parks and prohibits intentionally taking a photograph or otherwise recording a child without the consent of the child’s parent or guardian. Ness also challenges the Minnesota Harassment statute, which she alleges government officials have threatened to prosecute her under to prevent her from filming; our amicus brief does not address the Minnesota Harassment Statute.
With respect to the city ordinance, the district court held that it was content-neutral and analyzed it as a time, place and manner restriction. It also held that the city ordinance served the important governmental interests of protecting children's privacy, protecting children from intimidation or exploitation, and coordinating competing uses of the city parks. The district court also held that the city ordinance was narrowly tailored because the governmental interests "would be achieved less effectively without the City Ordinance." Finally, it held that the city ordinance left open ample alternative channels for communication because a person can record from just outside of city parks.
The amicus brief argued that the First Amendment protects the right to take photographs and make recordings in public parks, which are quintessential public forums and that the city ordinance is content-based and fails strict scrutiny. The amicus brief also argued that permitting the city ordinance to stand would have vast repercussions for the news media, who may refrain from photographing or recording newsworthy activities in public parks for fear that an individual captured in the image or recording is a minor. The amicus brief highlighted examples of newsworthy activities occurring in public parks, including recent demonstrations prompted by the police killing of George Floyd.
Recently, the Eighth Circuit issued its published decision in the case, reversing the district court decision and finding that a city ordinance banning photography and recording of minors in public parks, absent parental consent, violates the First Amendment as applied to the plaintiff's activities. The court agreed with the amicus brief that this was a content-based restriction, explaining that “an official must examine the content of the photograph or video recording to determine whether a child's image is captured.” The court also agreed that the ordinance is not “narrowly tailored” as applied to Ness, because she seeks to record “a matter of public interest––purported violations of permits issued by the City––and does not intend to harass, intimidate, or exploit children.”
Although the court did not address Ness's argument that the ordinance is unconstitutional on its face, reasoning that a court “should not extend its invalidation of a statute further than necessary to dispose of the case before it,” the decision indicates that the ban would likewise be unconstitutional as applied to journalists who record or photograph matters of public interest in public parks.
The groups joining the brief:
The E.W. Scripps Company
First Look Media Works, Inc.
Fox Television Stations, LLC
International Documentary Assn.
The McClatchy Company, LLC
MPA - The Association of Magazine Media
National Geographic Partners
National Press Photographers Association
National Public Radio, Inc.
The News Leaders Association
Radio Television Digital News Association
Society of Environmental Journalists
Society of Professional Journalists
Tully Center for Free Speech