Ness v. City of Bloomington

Background

Sally Ness sought a preliminary injunction, an order providing temporary relief while a lawsuit continues. She asked the court to stop the City of Bloomington, Bloomington police officers Troy Meyer and Mike Roepke, and Hennepin County Attorney Michael O. Freeman from enforcing Minnesota Statute § 609.749, the state harassment statute, and Bloomington Ordinance § 5.21 against her.

Ness alleged that Dar al Farooq and Success Academy had violated a conditional use permit and joint-use agreements concerning their use of property and that Bloomington had failed to enforce those agreements. She said she filmed and photographed traffic and activity near the organizations and Smith Park to collect information for public dissemination. After police interviewed her about complaints concerning her filming and interactions with children, Ness feared prosecution under the harassment statute. She also challenged the Bloomington ordinance, which prohibits intentionally photographing or otherwise recording a child in a city park without the consent of the child’s parent or guardian. The ordinance is enforced as a petty misdemeanor.

Ness argued that filming and photographing in a public forum for public dissemination about a public controversy is fully protected by the First Amendment. She expressly stated that she was not asking for a final ruling on the facial validity of the statute or ordinance, but sought protection from enforcement while the lawsuit proceeded.

Legal standard

A preliminary injunction is an extraordinary remedy. The court considered four factors: the likelihood of success on the merits, likely irreparable harm without an injunction, the balance of harms, and the public interest. Because Ness sought to stop enforcement of legislative acts, the court applied the more demanding requirement that she show she was likely to succeed, rather than merely having a fair chance of success.

Court’s analysis

The court held that Ness had not met the likelihood-of-success requirement. It explained that facial challenges—challenges asserting that a law is invalid in all applications—are disfavored. Ness instead asserted a categorical First Amendment right to record information in a public forum for public dissemination. The court noted that the Eighth Circuit had not fully recognized recording as protected by the First Amendment and that, even if a right to film exists, it may be subject to reasonable time, place, and manner restrictions.

The court concluded that the Bloomington ordinance might be such a restriction because it concerns photographing or recording children in a public park without parental consent. The court also stated that Ness had not clearly shown that collecting information through filming is expressive conduct or, if it combines expressive and nonexpressive conduct, that the harassment statute imposes an unconstitutional burden on speech. The court found that Ness had shown only a possibility of success, not the required likelihood of success.

The court also found no likely irreparable harm. Freeman had committed not to prosecute Ness under the state harassment statute for the activity she said she wanted to undertake, and Ness conceded that preliminary relief against the county prosecutor was no longer necessary. The City Defendants did not concede that they could not prosecute future conduct under the misdemeanor provisions of the harassment statute or enforce the city ordinance. Still, the court found it unclear whether Ness’s First Amendment interests were actually threatened, particularly because she could film from public sidewalks and private property and had not shown that those alternatives prevented her from collecting or sharing the information she wanted.

The balance of harms and public interest factors also favored the Defendants. The court reasoned that an injunction could prevent them from enforcing the laws regardless of how serious Ness’s future conduct became, while the public had an interest in protecting children from potential harassment and dangerous interactions. The court also found no demonstrated urgency requiring immediate filming in Smith Park and noted the public interest in allowing law enforcement and community members to continue addressing harassment complaints and communicating with Ness.

Disposition

The court denied Ness’s Motion for a Preliminary Injunction. The order did not finally decide whether Minnesota Statute § 609.749 or Bloomington Ordinance § 5.21 violates the First Amendment.