Fairborn Sweet Corn Festival violated religious free speech, court rules

Court said policy against distributing leaflets is too broad

File photo Fairborn Sweet Corn Festival.

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By Mark Gokavi, Staff Writer Updated 11:53 AM Tuesday, February 14, 2012

A federal appeals court in Cincinnati ruled Monday that two Christians had their free speech rights violated and should have been allowed to display signs and distribute leaflets promoting their religious beliefs at the Fairborn Sweet Corn Festival in 2009.

The U.S. 6th Circuit Court of Appeals three-judge panel ruled unanimously that a festival policy against solicitation from individuals who were not working at a booth was too extensive, unconstitutional and violated the First Amendment. The panel reversed an earlier decision by U.S. District Judge Thomas M. Rose from the Southern District of Ohio.

Monday’s decision upheld the preliminary injunction plaintiffs Tracy Bays and Kerrigan Skelly — who are described in the lawsuit as evangelical Christians from Kentucky — sought to be allowed to carry signs and speak about religion at the festival. The case has been sent back to Rose to decide the merits of the festival’s solicitation policy.

According to court records, Bays walked around Fairborn Community Park on Aug. 15, 2009, with a sandwich board sign with Christian messages such as, “Are you born again of the Holy Spirit.”

The lawsuit said a festival worker asked Bays either to remove his sign or leave, but Bays stayed.

Later, Fairborn Parks and Recreation Department Superintendent Pete Bales told Bays he could not display a sign or distribute literature. Bays and Skelly were talking in the park when Bales and three Fairborn police officers approached and told the men they needed a “permit.”

Police warned the men they could be subject to criminal trespassing charges if they continued to display signs and hand out religious tracts, according to court records

After a long discussion, Bays and Skelly left the park to avoid being arrested.

They filed a federal lawsuit in 2010. The Scottsdale, Ariz.-based Christian legal aid group, Alliance Defense Fund, argued their appeal.

Rose originally ruled against Bayes and Skelly just before the 2010 festival, but a federal appeals court granted an injunction for the pair to attend the 2011 festival.

Fairborn Solicitor Michael Mayer said Bays and Skelly attended the 2011 festival for a couple hours without incident.

The festival is organized by the Fairborn Arts Association and the Fairborn Lions Club, groups that have an arrangement with the city to host the event at the park since 1982.

In writing the court’s opinion, Judge Eugene E. Siler Jr. ruled that the event is free, held on public property and that free speech should not be limited.

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