Dearborn’s restrictions on leafleting at the Arab International Festival are unconstitutional and the city could have to pay damages for it, a group of federal judges ruled Thursday.
In a split decision, a three-judge panel from the 6th U.S. Circuit Court of Appeals found the city infringed on Christian Pastor George Saieg’s free-speech rights by instituting in 2009 a policy prohibiting pamphleteering during the three-day June street festival.
The court further ruled Saieg could seek nominal damages against the city. Nominal damages are typically small sums intended to show the harm suffered by a plaintiff is technical rather than actual.
Saieg, a California native, attended Arab Fest from 2004-08 with anywhere between 90 and 120 volunteers to distribute leaflets along Warren Avenue sidewalks. Police Chief Ronald Haddad instituted the leaflet ban shortly after he was hired, citing concerns over crowd control and traffic movement. Saieg filed suit against the city in 2009 when he was made aware of the policy.
A federal judge in Detroit denied a temporary restraining order that year for Saieg, and instead of walking the festival grounds Saieg was given a booth at the festival free of charge. But it was “poorly lit” and located by carnival rides, “which attracted mostly children,” the order noted.
In 2010, the same judge who denied the temporary restraining order denied a motion for summary judgment by Saieg and instead sided with the city, ruling that the city’s leaflet ban was constitutional. Saieg appealed the decision to the 6th Circuit Court and was granted a temporary injunction, “to distribute his religious literature in the streets contained within . . . the ‘outer perimeter’ or ‘buffer zone,’” of the festival but not “within the festival itself,” at the 2010 festival.
Thursday’s ruling was the appeals court’s final decision on that temporary injunction.
“Absent an injunction, Saieg will continue to suffer irreparable injury for which there is no adequate remedy at law,” wrote Judge Karen Moore on behalf of the majority.
The judges’ ruling turned on the fact that sidewalks are kept open for non-festival activities, such as the storefront vendor tables that businesses put out throughout the duration of the event. If merchants are allowed to restrict the sidewalks, the judges reasoned, then the city’s crowd control concerns do not supersede free-speech rights.
The decision does not address restrictions about passing out literature on the actual roadway, which is where the majority of activity and foot traffic is.
Dearborn Mayor Jack O’Reilly said the appeals court decision was focused on a narrow issue, but that the city would not challenge it.
“Since the festival chose to keep the sidewalks open for other business not related to the festival, the court ruled that the sidewalks had to be available for the material distribution. It is a narrow opinion, and one we will abide by,” said O’Reilly.
The case was remanded to U.S. District Court for the Eastern District of Michigan for further proceedings, which could include further injunctions in favor of Saieg “as appropriate” in advance of this year’s Arab Fest, scheduled for June 17-19, the appeals court said.
“We’re very pleased and we think it’s the correct ruling,” said Saieg’s attorney, Robert Muise. “It’s what we’ve been arguing since 2009.”
Muise, of conservative Christian-interest firm the Thomas More Law Center, said the ruling bodes well for another civil case he is trying against involving Christian missionaries and allegations of free-speech violations by the city.
Muise represents a small group of missionaries who were arrested on the first day of the 2010 Arab Fest. On the last day of the festival, the missionaries were handing out Bible literature on the outskirts of the festival grounds when they were approached by police and told to either move or stop handing out the pamphlets.
“That’s plainly a violation of their First Amendment rights,” Muise said, “and this ruling confirms that.”