Battle over preaching at Northland holiday lighting display heads back to federal court

Two Northland preachers are back in federal court alleging that the city of Duluth and Bentleyville Tour of Lights are again violating their constitutional rights to profess their faith inside the holiday lighting display.

The preachers – Steve Jankowski of Duluth and Peter Scott of Hibbing, along with the religious freedom groups Alliance Defending Freedom and the Center for Religious Expression — filed a motion Tuesday in federal district court in Minneapolis asking a judge to order the city of Duluth to let them into Bentleyville.

City officials have countered that the preachers can be limited to a new “First Amendment zone,” near a parking lot outside one of the entries to the lighting display.

Jonathan Scruggs, attorney for the Alliance Defending Freedom representing the preachers, said it’s not acceptable for the city to deem a large area of a public park as closed to First Amendment rights.

“Nothing has changed from last year. The event is still free and open to the public and it’s still a park. You can’t just close off large areas of a park to First Amendment rights,” Scruggs told the News Tribune on Friday.

Nathan Bentley, who founded the lighting display, told the News Tribune on Friday that the preachers were at the park on opening night, Nov. 17, and that police officers showed the men a location in the park that the city has posted as a “First Amendment free speech area.”

That area, marked with a sign on a fence, is between the main parking lot and an entrance to the lighting display area.

In a declaration filed with the court this week, Jankowski said he has not been back to the park since the 17th. He said Scott has video of police ordering him not to pass out literature inside the display.

Police told Scott “they had received instruction from the city attorney to ignore the injunction and they forced Michael (Scott) to stop his expression under the threat of arrest,” Jankowski wrote in his declaration to the court.

The issue first surfaced in November 2010 when the men were escorted by Duluth police out of the display when they refused to stop preaching to people walking through the lighting display. The preachers, backed by the legal defense groups, filed suit one year later saying the park was a public place and that the city had no right to keep them men out.

The original suit noted that Scott wore a sweat shirt while at Bentleyville that was emblazoned with “Fear God. Hate Sin. Trust Jesus” on the front and “The Blood of Jesus Washes Away Sins” on the back.

The suit claimed the men have a religious obligation to preach their Christian faith in public, including carrying signs and wearing messages on their clothes. According to the suit, both men are known for preaching along Duluth’s sidewalks and streets and at events.

A federal judge last December agreed with the preachers and issued a temporary injunction ordering the city to let them into the lighting display. Federal Judge Michael Davis said the city is “hereby enjoined from interfering with or prohibiting plaintiffs and other third party speakers from engaging in protected expression, in the form of peaceful distribution of literature, display of signs and engaging in dialogue, in Bayfront Festival Park” under the city’s contract with Bentleyville.

Davis concluded that “the city has failed to set forth any government interest served by prohibiting plaintiffs from exercising their First Amendment rights.” But by the time the decision was made last December, Bentleyville was nearly closed for the season.

This year, city attorneys and lawyers for the nonprofit foundation that operates Bentleyville re-worked the contract that allows the organization to use the city park. In documents filed with the federal court, Duluth’s city attorneys say that new contract allows Bentleyville, as promoter of the event, to set the rules on who is allowed into the display.

The city has filed its own motions asking that last year’s injunction be thrown out because it only applied to the old contract and that Bentleyville be allowed to refuse the preachers full access to the display.

“Because the old agreement has been replaced by a new agreement, the preliminary injunction, by its express terms, is now moot,” the city argued in a brief filed Monday.

Scruggs disagreed.

“Even if something had changed since the court (decision) last year, the city can’t unilaterally end the injunction,” Scruggs said. “They should have gone to the court to end the injunction before they broke it.”

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