International Society for Krishna Consciousness, Inc. v. Heffron

299 N.W.2d 79

• Court: Supreme Court of Minnesota
• Decided: January 19, 1981
• Docket: 49526
• Status: Published

Opinions

PETERSON, Justice.

Plaintiffs International Society for Krishna Consciousness, Inc. (ISKCON), a religious organization, and Joseph Beca, a member of ISKCON, challenge on this appeal the trial court’s refusal to declare Minnesota State Fair Rule 6.05 uncontitutional and enjoin permanently the rule’s enforcement. We conclude that enforcement of Rule 6.05 against members of ISKCON would violate their constitutionally guaranteed right to free exercise of religion.

Plaintiff ISKCON maintains temples and schools throughout the world and is organized under the laws of this state as a nonprofit religious corporation. Members of ISKCON espouse the doctrines of Krishna Consciousness, a branch of the Hindu religion. Krishna Consciousness requires its followers to perform an evangelical ritual known as Sankirtan. The performance of Sankirtan consists of going out into public places to distribute or sell religious literature and to solicit donations for the support of Krishna Consciousness. The declared purposes of Sankirtan are to spread the doctrines of Krishna Consciousness, to attract new members to ISKCON, and to gain financial support for ISKCON’s religious and educational activities.¹

Plaintiff Joseph Beca is an ISKCON priest and the head of ISKCON’s Minneapolis temple. Beca and other members of ISKCON wish to practice Sankirtan at the Minnesota state fair, an event which takes place from late August through early September of each year. Rule 6.05, as promulgated by the Minnesota state agricultural society (the society), a governmental body which has control of the state fairgrounds and responsibility for administration of the state fair, prohibits the sale or distribution on the fairgrounds of “any merchandise including printed or written material except under a license issued [by] the Society and/or from a duly licensed location.”² The state fair’s policy in applying Rule 6.05 has been to restrict all sales and distributions of materials at the fair to fixed locations on the fairgrounds. In most instances these fixed locations take the form of booths or buildings rented from the society by sellers and distributors. Plaintiff ISK-CON has been notified that its members who practice Sankirtan at the fair must confine all distributions and sales of religious literature and solicitations of donations to a rented booth.

Members of ISKCON are unwilling to have their practice of Sankirtan so restricted. They wish to distribute and sell religious literature and solicit donations throughout the areas of the fairgrounds that are open to the public. In August 1977, plaintiffs, on behalf of themselves and all members of ISKCON, commenced this action under 42 U.S.C. § 1983 (1979) and Minn.Stat. § 555.01 (1978) for a judgment declaring that Rule 6.05 violates the First and Fourteenth Amendments of the United States Constitution. Plaintiffs also asked the trial court to enjoin defendant state officials³ from enforcing Rule 6.05 against members of ISKCON who practice Sankir-tan in public areas of the fairgrounds.

The trial court issued a temporary restraining order prohibiting defendants from preventing members of ISKCON from proselytizing, distributing religious literature, or soliciting donations for religious purposes in public areas of the fairgrounds during the 1977 state fair. The trial court, however, enjoined members of ISKCON from “selling or inducing others to purchase” religious literature or items at any location within the fairgrounds other than one rented for that purpose. The parties thereafter made cross-motions for summary judgment based upon stipulated facts. By an order dated August 18, 1978, the trial court granted defendant’s motion' for summary judgment and denied plaintiffs’ motion.⁴ This appeal ensued.

The question presented for our decision is whether it is constitutionally permissible for defendants to apply Rule 6.05 so as to require that members of ISKCON who practice Sankirtan at the state fair confine their distribution, sale, and solicitation activities to a rented booth. The First Amendment of the United States Constitution forbids the enactment of laws prohibiting the free exercise of religion.⁵ The time, place, and manner of religious activity may, however, be subject to reasonable and nondiscriminatory regulation if necessary to further an important governmental interest. Cantwell v. Connecticut, 310 U.S. 296, 303-04, 60 S.Ct. 900, 903, 84 L.Ed.2d 1213 (1940). Defendants concede that Sankirtan is a religious activity entitled to First Amendment protection.⁶ They argue that Rule 6.05, as applied by them to members of ISKCON, does not offend the First Amendment because it is a permissible regulation of the place and manner of the practice of Sankirtan.

Plaintiffs do not claim that Rule 6.05 has been applied to members of ISK-CON in a discriminatory fashion. What is at issue here is the reasonableness of the rule as a place and manner regulation. The application to an individual of a governmental regulation which incidentally restricts him in the exercise of a First Amendment right is permissible only if the regulation “furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” International Society for Krishna Consciousness,, Inc. v. Conlisk, 374 F.Supp. 1010, 1015 (N.D.Ill. 1973) (quoting United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968)). The party urging that application of the regulation be upheld has the burden of proving that these criteria are met. Elrod v. Burns, 427 U.S. 347, 362, 96 S.Ct. 2673, 2684, 49 L.Ed.2d 547 (1976). Defendants have not sustained that burden in this case.

Defendants assert that the state’s interest in maintaining order at the state fair is sufficiently important to justify the application of Rule 6.05 to members of ISKCON. The state fairgrounds comprise approximately 125 acres. An average of 115,000 persons visit the fairgrounds each weekday while the state fair is in progress. On Saturdays and Sundays daily attendance averages 160,000. Approximately 1,400 exhibitors and concessionaires rented space at the 1977 and 1978 state fairs. We agree that these facts suggest a situation in which the state’s interest in maintaining order is substantial. We have no doubt that Rule 6.05’s requirement that all vendors, exhibitors, and concessionaires perform their functions at fixed locations furthers that interest significantly.

What defendants must demonstrate, however, is not the importance of the state’s undeniable interest in preventing the widespread disorder that would surely exist if no regulation such as Rule 6.05 were in effect. Rather, they must establish the importance of the state’s interest in avoiding whatever disorder is likely to result from granting members of ISKCON an exemption from compliance with the rule.⁷

It is fundamental that First Amendment rights may be restricted only for weighty reasons. We note that members of ISKCON are not prohibited from proselytizing throughout public areas of the fairgrounds. Some disorder is bound to attend this activity. We are not convinced that allowing ISKCON members to also distribute religious literature and accept money throughout the public areas of the fairgrounds would cause additional disruption sufficient to justify confining those activities to a booth.⁸

Even if we assume the importance of the state’s interest in preventing the disorder that will result from allowing members of ISKCON to distribute or sell religious literature and receive donations in public areas of the fairgrounds, we are not persuaded that application of Rule 6.05 to members of ISKCON is essential to the furtherance of that interest. The state’s interest can be adequately served by means less restrictive of First Amendment rights. Conduct that tends to create disorder on the fairgrounds may be specifically prohibited.

[People may be prevented] from blocking sidewalks, obstructing traffic, littering streets, committing assaults, or engaging in countless other forms of antisocial conduct. Such restraints on a solicitor’s manner of conduct are characterized as after the fact prosecution, rather than a prior restraint on conduct. This type of sanction after the event assures consideration of the particular circumstances of the situation. Therefore, [a regulation should be aimed] at the act of obstruction itself rather than prohibiting solicitations on public sidewalks based on its desire to prevent obstruction and provide for the free flow of traffic.

Jones, “Solicitations—Charitable and Religious,” 31 Baylor L.Rev. 53, 57 (1979). If the number of persons distributing and selling religious literature and receiving donations throughout the public areas of the fairgrounds becomes unmanageably large, a regulation to limit their number might be justified.⁹ A place regulation less restrictive than Rule 6.05 might also be appropriate. For example, in International Society for Krishna Consciousness, Inc. v. McAvey, 450 F.Supp. 1265 (S.D.N.Y. 1978), the court refused to enjoin regulations establishing 10 areas at the World Trade Center in New York City within which only one ISKCON member at a time could solicit and prohibiting solicitations within 15 feet of certain designated places.¹⁰

Although we are limited by the record in this case, we recognize that an additional concern of defendants may involve the manner in which some members of ISK-CON are reputed to practice Sankirtan. Like the problem of maintaining order, this problem can be solved by means less restrictive than confining ISKCON members’ distribution, sales, and solicitation activities to a booth. Persons claiming to be members of ISKCON may be required to establish their identity and authority to act on ISK-CON’s behalf before being permitted to practice Sankirtan throughout the fairgrounds. Cantwell v. Connecticut, 310 U.S. 296, 306, 60 S.Ct. 900, 904, 84 L.Ed.2d 1213 (1940). Criminal and civil actions are available to remedy abuses such as fraud and battery in individual cases. See International Society for Krishna Consciousness, Inc. v. Bowen, 600 F.2d 667, 669-70 (7th Cir. 1979), cert. den., 444 U.S. 963, 100 S.Ct. 448, 62 L.Ed.2d 375 (1979).

In Bowen, the United States Court of Appeals for the Seventh Circuit affirmed the district court’s order enjoining Indiana state fair officials from enforcing against members of ISKCON a policy of prohibiting peripatetic solicitation on the fairgrounds. We share the cogent expression of the First Amendment principle stated in these closing remarks of the court of appeals’ opinion (600 F.2d at 670-71):

[W]e are not unmindful, as anyone cannot be who has travelled through a major airport facility in recent years, that practitioners of Sankirtan have been regarded as annoying and often downright irritating by those they approach. It is not, however, the cases in which the auditor is in agreement with that which is being expressed which reach the courts under the rubric of the First Amendment. Distaste for what is being expressed, and often absolute revulsion, appear to be the hallmarks of the exercise of First Amendment rights and probably are the necessary contexts in which the preservation of those rights can be firmly assured.

The order of the trial court is reversed and remanded with directions that the trial court amend its order, in conformity with this opinion, to enjoin defendants from enforcing Rule 6.05 against members of ISK-CON who wish to practice Sankirtan at the state fair.¹¹

Reversed and remanded with directions.

1 . This case is presented to us upon stipulated facts. The parties’ stipulation provides in part: “In performing Sankirtan, ISKCON devotees often greet members of the public by giving them flowers or small American flags, but for the purpose of this lawsuit they seek only to solicit contributions for their literature and their religious activities, and not for these greeting gifts. They do not seek to dance, chant, or to engage in any other potentially disruptive or disorderly conduct.”

2 . Minn. Stat. § 37.16 (1978) authorizes the society to make “all bylaws, ordinances, and rules, not inconsistent with law, which it may deem necessary or proper for the government of the fairgrounds and all fairs to be held thereon, and for the protection, health, safety, and comfort of the public thereon” and provides that “[t]he violation of a bylaw, rule, or ordinance promulgated by the society is a misdemeanor.”

The president and secretary of the society are authorized to appoint “special constables or deputies * * * for the regulation of the Minnesota state fairgrounds” who “shall have and exercise upon the [state fairgrounds] all the power and authority of peace officers and, in addition thereto, may, within these limits, without warrant, arrest any person found violating any law of the state, or any rule, regulation, bylaw, or ordinance of the society, and may summarily remove the persons and property of such offenders from the grounds and take them before any court of competent jurisdiction to be dealt with according to law.” § 37.20.

3 . The board of managers of the society, the members of which are defendants in this action, is vested with the management and control of the affairs of the society. § 37.04, subd. 1. One of the society’s duties is to hold an annual fair upon the fairgrounds. § 37.15.

Defendant Michael Heffron, as secretary of the board of managers of the society and manager of the state fair, has responsibility for supervising all activities at the state fair and for implementing and enforcing all state fair rules and regulations.

Defendant Harveydale Maruska, as president of the board of managers of the society, has responsibility along with defendant Heffron for appointing peace officers to enforce all state laws and all rules, regulations, bylaws, and ordinances of the society on the fairgrounds.

Defendant Warren Spannaus, the attorney general of the State of Minnesota, directs a member of his staff to prosecute those arrested at the fairgrounds for violations of state laws or of rules, regulations, bylaws, and ordinances of the society.

4 . The trial court’s order provides:

IT IS HEREBY ORDERED that plaintiffs’ motion for summary judgment is in all respects denied. Defendants’ motion for summary judgment is in all respects granted.

IT IS FURTHER ORDERED that plaintiffs are prohibited from

1) Engaging in any distribution of materials (e. g., books, flowers, flags, incense, artifacts, etc.) throughout the fairgrounds, except from rented booth space;

2) Engaging in any sales or solicitation for monetary donations throughout the fairgrounds, except from rented booth space; However, plaintiffs are permitted to:

Roam throughout those areas of the fairgrounds generally open to the public for the purpose of discussing with others their religious beliefs.

5 .“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” U.S.Const. amend. I. “The Fourteenth Amendment has rendered the legislatures or the states as incompetent as Congress to enact such laws.” Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940).

6 . Proselytism, the distribution or sale of religious literature, and the solicitation of donations by members of a religious organization who seek to attract new members and to generate financial support for the organization have long been considered activities protected by the First Amendment. See Murdock v. Pennsylvania, 319 U.S. 105, 110-11, 63 S.Ct. 870, 873-874, 87 L.Ed. 1292 (1943); Cantwell v. Connecticut, 310 U.S. at 305, 60 S.Ct. at § 904. For cases treating Sankirtan specifically as a bona fide religious practice, see, e. g., international Society for Krishna Consciousness, Inc. v. Bowen, 456 F.Supp. 437, 441-42 (S.D.Ind. 1978), aff’d, 600 F.2d 667 (7th Cir. 1979), and cases cited therein.

7 . If Sankirtan is to be practiced properly, the various activities included in the practice of Sankirtan must be performed in a peripatetic manner. Members of ISKCON therefore have a special claim to an exemption from Rule 6.05 on free exercise grounds. Commercial vendors of literature can make no similar claim.

Defendants argue that the facts as stipulated by the parties do not establish that Krishna Consciousness requires its followers to perform all of the activities comprising Sankirtan in a peripatetic manner. We recognize that in deciding this case we are limited by the parties’ stipulation. We believe, however, that the peripatetic nature of Sankirtan is easily inferrable from the parties’ explanation in their stipulation that the ritual is performed by “going out into public places.”

8 .During oral argument in October 1979, defendant suggested an additional interest as justification for applying Rule 6.05 to members of ISKCON: the state’s interest in protecting the privacy of fairgoers. This interest is insufficient as long as Sankirtan is practiced in such a way that fairgoers who wish to avoid it are able to do so. The United States Supreme Court “has not generally allowed government to suppress speech [or, presumably, other activity protected by the First Amendment] solely to protect unwilling listeners from ‘offensive’ expression unless substantial privacy interests have been invaded. * * * The ‘privacy’ interests of unwilling listeners are strongest in the home * * *. In public places an individual’s privacy interests in avoiding offensive communications are generally thought insubstantial unless the person is deemed a member of a ‘captive audience,’ either because the person is literally not free to leave without great burden * * * or because the person is in a place where one cannot readily avoid exposure to the unwanted communication.” L. Tribe, American Constitutional Law, 677, 677-78 n. 13 (1978).

In Farmer v. Moses, 232 F.Supp. 154, 162 (S.D.N.Y. 1964), the court considered the privacy rights of visitors to the New York World’s Fair and stated: “[T]hose of us who pay the regular admission fee and attend the Fair cannot be totally insulated from our fellows, nor can we expect to be shielded from expressions or ideas which are unanticipated and unsolicited. An individual’s right of privacy is of practical necessity limited by the rights of others when he leaves his home and ventures forth into public areas, even those which he must pay to enter.”

9 . In connection with this we note that the parties have stipulated that “ISKCON, while unwilling to confine its religious activities to a booth, has indicated its willingness to submit to the regulation of its members in their circulation throughout the fairgrounds to proselytize, distribute, and sell literature, and solicit contributions.”

10 . The regulations upheld in International Society for Krishna Consciousness, Inc. v. McAvey, 450 F.Supp. 1265 (S.D.N.Y. 1978), are offered here only as an example. We do not intend to suggest that the same regulations would be appropriate at the Minnesota state fair. Regulations of the time, place, and manner of protected activity must be tailored to the forum in which such activity takes place. The state fair is not equivalent in character to the World Trade Center. Nor is it equivalent to an airport. See, e. g., Internationa] Society for Krishna Consciousness, Inc. v. Eaves, 601 F.2d 809 (5th Cir. 1979) (upholding a regulation requiring that the receipt of money by ISKCON members practicing Sankirtan at the Atlanta airport take place only at a booth).

11 . Since this writing, an opinion has been published in which the Supreme Court of Colorado, in a case virtually identical on its facts to this case, reached the same result as we reach here. See International Society for Kishna Consciousness, Inc. v. Colorado State Fair and Industrial Exposition Commission, Colo., 610 P.2d 486 (1980).