In a split decision, the Eighth U.S. Circuit Court of Appeals has rejected a Lincoln man's claim that the city violated his right to free speech by arresting him as he handed out religious pamphlets outside Pinnacle Bank Arena.
The ACLU of Nebraska, which represented Larry Ball along with attorney Thomas White, expressed disappointment Tuesday.
"We continue to be concerned about free speech outside of the arena because the policy that exists today is confusing and not applied uniformly," executive director Danielle Conrad said in a news release. "As a result, our client and others involved in peaceful expressive free speech activities near the city-owned Pinnacle Bank Arena are at risk of criminal prosecution."
On March 5, 2015, Lincoln police arrested Ball as he passed out pamphlets in the plaza area, 30 feet or so away from the arena's doors, during the girls state high school basketball tournament after he refused to move to the public sidewalk.
When he returned two days later, police cited him again.
The arena's general manager and the police said Ball was within a restricted area defined by planters and bollards where leafleting, picketing and soliciting are not allowed without the permission of the tenants.
Ball sued in U.S. District Court in 2015 after he was found guilty in state court of two misdemeanor trespassing counts and fined $100.
The city argued the area is quasi-public, because it's contracted to private tenants.
Last year, after Chief U.S. District Judge Laurie Smith Camp dismissed the lawsuit, Ball appealed, asking a three-judge panel of the federal appeals court to give new life to it.
In Tuesday's decision, two of the three judges who heard the case concluded that the plaza area was nonpublic and that the arena policy was a "reasonable restriction on speech."
Writing for the majority, Judge Roger Wollman of Sioux Falls, South Dakota, said the policy was designed to prevent interference with tenants' use of the area and to facilitate safe access for patrons.
"Although Ball was at all times peaceful and respectful while leafletting, permitting such conduct within the plaza area amid large crowds of people intent on entering the arena before or exiting the arena after an event could result in an impediment to the flow of traffic and thus endanger the safety of arena patrons," he wrote.
Judge Michael Melloy of Cedar Rapids, Iowa, concurred in part and dissented in part, saying he would've held that the policy "does not pass constitutional muster" for the area between the pedestrian bridge and the Haymarket district.
Ball said: "I do believe that this ruling is wrong and that the overall outcome may continue in error. But, the Lord will have a purpose for allowing this."
The ACLU hasn't said yet if they will appeal or ask for a rehearing involving the full panel.
Conrad asked Mayor Chris Beutler and the Lincoln City Council to work with the ACLU to revise the existing arena policy and make it more like the one in place around Memorial Stadium.
She said it would bring closure to the case and ensure clarity for Lincoln residents.
"Revising this controversial policy would also demonstrate a commitment from the City of Lincoln to stop spending precious taxpayer dollars enforcing criminal sanctions that have real and chilling effects on free speech and religious freedom rights," Conrad said.
City Attorney Jeff Kirkpatrick said the ruling "allows Pinnacle Bank Arena to keep operating in a businesslike manner without having anybody interfere with operations or security procedures."