OMAHA, Neb. — In a split decision, a federal appeals panel on Tuesday sided with the city of Lincoln in a civil rights lawsuit filed by a man arrested and convicted of trespassing for handing out religious leaflets outside an arena on public land.
Larry Ball, 80, appealed last year after a federal court in Lincoln granted the city’s request for summary judgment, ending Ball’s lawsuit.
Ball sued after being found guilty in 2015 of two misdemeanor trespassing counts and fined $100. Ball has maintained that the area in front of the Pinnacle Bank Arena entrance where he was handing out religious pamphlets during state girls’ and boys’ high school basketball tournaments is a public-use area and that the city violated his free-speech rights.
But the city argued the plaza is only quasi-public, because it is contracted to private tenants, and that those tenants should be able to control the flow of people around the arena.
The issue stemmed from Ball’s leafletting outside the arena in the plaza area in March 2014. He was asked to move to a nearby sidewalk, which he did for a while, then returned to the plaza. When he refused to leave, he was arrested and charged, but the charges were later dropped.
The following year, he again returned during the tournaments to hand out leaflets and again refused to leave the plaza area, maintaining that it was a public space. He was not arrested then, but was ticketed for trespassing and later convicted.
Two of a panel of three 8th U.S. Circuit Court of Appeals judges agreed that the city’s policy restricting use of the plaza is reasonable.
Judges Roger Leland Wollman and Bobby E. Shepherd said the First Amendment “does not provide Ball with unfettered latitude to engage in leafletting wherever and whenever he might choose.”
The government, they said, has the power to preserve property under its control for the use to which it’s been dedicated. While precedent holds that streets, sidewalks and public parks are open to public assembly and speech, the plaza area in front of the arena is not primarily used as thoroughfare for the public, the judges said.
“Rather, it functions as a venue for commercial use by arena tenants, as a means to facilitate safe and orderly access to the arena for its patrons, as a security screening area, and as a gathering place and entryway for arena patrons,” Wollman wrote.
In a dissent, Judge Michael Joseph Melloy said part of the plaza area between a pedestrian bridge and public sidewalk should be considered a traditional public forum, just as the sidewalk is. Melloy also said the city’s policy is too broad, because while the policy states it’s meant to allow arena tenants use of the area, the policy is in effect at all times.
“The policy would be more narrowly tailored to serve appellees’ stated interests if it applied during events only,” he wrote.
Messages left Tuesday for the American Civil Liberties Union of Nebraska, which helped represent Ball in the lawsuit, and Omaha attorney Tom White, who also represented Ball, were not immediately returned.
City of Lincoln attorney Jeffery Kirkpatrick said the ruling “allows Pinnacle Bank Arena to keep operating in a businesslike manner without having anybody interfere with operations or security procedures.”