Tracy Bays v. City of Fairborn
2012 U.S. App. LEXIS 2807
| 6th Cir. | 2012Background
- Festival held annually in Community Park, a public park in Fairborn, Ohio, with FAA and Lions Club organizing; park remains open during festival.
- Booth applications are handled by FAA; Terms and Conditions include a policy prohibiting sales or soliciting causes outside booth space.
- Bays and Skelly, Christians, planned to express religious views at the Festival by speaking, signs, and handing out literature.
- Festival officials prohibited display of a sign and distribution of literature; officers warned of arrest for trespass if continued.
- District court denied preliminary injunction, finding no state action and a reasonable time/place/manner restriction; appeal followed.
- Opinion concludes there is state action and the solicitation policy is not narrowly tailored, warranting reversal and remand with injunction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there is state action attributable to Fairborn | Bays/Skelly contend officials actively enforced policy. | Fairborn argues policy is private, not state action. | Yes, state action established. |
| Whether the solicitation policy is a permissible content-neutral time/place/manner restriction | Policy is facially neutral and burdens religious speech only when enforcing. | Policy targets solicitation broadly, including religious speech. | Content-neutral. |
| Whether the policy is narrowly tailored to serve a significant government interest | Policy serves crowd control but is not narrowly tailored. | Policy advances crowd control and safety, justifying restriction. | Not narrowly tailored; burdens substantially more speech than necessary. |
| Whether there are ample alternative channels of communication | Other booths and areas could accommodate expressive activity. | Policy precludes broader speech outside booths. | Not reached; failure of tailoring suffices. |
Key Cases Cited
- Parks v. City of Columbus, 395 F.3d 643 (6th Cir. 2005) (presumption of state action when city assists festival)
- Cornelius v. NAACP Legal Def. & Educ. Fund., Inc., 473 U.S. 788 (U.S. 1985) (three-step framework for public-forum speech cases)
- Saieg v. City of Dearborn, 641 F.3d 727 (6th Cir. 2011) (leafletting restriction struck for lack of tailoring in festival setting)
- Heffron v. International Society for Krishna Consciousness, 452 U.S. 640 (U.S. 1981) (booth requirement upheld to reduce congestion in a state fair)
- Ward v. Rock Against Racism, 491 U.S. 781 (U.S. 1989) (content-neutral restrictions must be narrowly tailored to significant interests)
- Clark v. City of Co.—, 468 U.S. 286 (U.S. 1984) (time/place/manner restrictions must be narrowly tailored and leave channels open)