Ness v. City of Bloomington

Court: U.S. Court of Appeals for the Eighth Circuit

Date Filed: Sept. 25, 2020

Update: On Sept. 2, 2021, the U.S. Court of Appeals for the Eighth Circuit issued a published opinion in this case, reversing the district court’s decision and finding that the 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 here. The court agreed with the Reporters Committee’s friend-of-the-court brief that this was a content-based restriction and 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 whether the ordinance is unconstitutional in all cases, 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.

Background: In 2019, Sally Ness filed a lawsuit against the City of Bloomington challenging, among other things, the constitutionality of a city ordinance that prohibits intentionally taking a photograph or otherwise recording a minor in a city park without the consent of the parent or guardian.

Ness, a Bloomington resident, alleged that police officers had confronted her about documenting various activities related to a public controversy surrounding a neighborhood mosque and school, including their use of a city park as a playground. She claimed that she stopped filming activities in the park because she did not want to face a penalty under the city ordinance.

The defendants filed a motion to dismiss the suit, which the U.S. District Court for the District of Minnesota granted. The district court held that the ordinance is a content-neutral restriction on speech that serves the important governmental interests of protecting children’s privacy, protecting minors from intimidation or exploitation, and coordinating competing uses of the city parks. The district court also determined that the city ordinance leaves open ample alternative channels for communication because a person can record from just outside of city parks.

Ness has appealed to the U.S. Court of Appeals for the Eighth Circuit on the grounds that the city ordinance is an unlawful, content-based prior restraint on speech in a public forum.

Our Position: The Eighth Circuit should reverse the district court’s decision and strike down the city ordinance as unconstitutional under the First Amendment.

• The First Amendment protects the right to take photographs and make audio and video recordings in public parks.
• The city ordinance is a content-based restriction on speech and fails strict scrutiny under the First Amendment.
• Permitting the city ordinance to stand would have a chilling effect on photography and recording in public parks by journalists at a time when historic protests are taking place.

Quote: “Demonstrations in public parks and streets have swept across the nation, and the ability of the press and public to photograph and record them and disseminate this information to the public serves a vital and constitutionally protected purpose. These photographs and recordings inform the public in a richer, fuller way than words alone can convey. They enable the public to better understand current events, to engage in public debate on the issues raised by these events — such as the role of policing, the movement for racial justice, and law enforcement’s response — and ultimately, to hold their elected officials accountable.”

Related: In 2016, the Reporters Committee filed a friend-of-the-court brief in support of two individuals in Philadelphia who were arrested for photographing police officers during arrests. The Reporters Committee argued that photos and videos provided by citizens and bystanders are valuable to the news media and the public, and taking such images is a right protected by the First Amendment.