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Snoqualmie man wins free-speech lawsuit against Issaquah's Salmon Days
As Issaquah's annual Salmon Days begins Saturday, Oct. 1, and the city celebrates the return of salmon to the area, Paul Ascherl will celebrate a court victory, by returning to the festival to distribute religious literature.
Ascherl, of Snoqualmie, was the named plaintiff in a lawsuit claiming infringement of his First Amendment rights by the city of Issaquah. His attorneys claimed the city's 12-year-old law, IMC 5.40.040, effectively banned free speech in public areas, and in a September 21 ruling, federal judge Marsha Pechman concurred. Judge Pechman upheld an injunction against the city's enforcement of the law during this year's Salmon Days, and denied the city's request for an extension of the case.
The Issaquah code "establishes 'expression areas' within the festival area for leafleting, organized protesting, non-scheduled entertainment, and non-profit distribution," but Ascherl's claim in his August 5 filing was that both areas were too remote for his purposes, and one was also too noisy.
"The problem with those so-called free expression areas is you can't really reach an audience," said Alliance Defense Fund attorney Nate Kellum, the senior counsel for Ascherl's case. "Nobody really came that close to where he was forced to be."
Ascherl, who referred the Record to the Alliance Defense Fund for all comments "until the case is over," states in his affidavit that he was distributing literature about his faith at the 2010 Salmon Days, and was told by a festival official to stop. He refused, saying he was within his Constitutional rights, and the official left but returned with two police officers. Ascherl assured the police he was not forcing his literature on anyone or harassing passers-by, and they left.
"He was not trying to cause a spectacle. He just wanted to share his views," Kellum said.
The affidavit further reports that the festival official returned with police and ordered him to stop again. He ask to see any law prohibiting his action, and, when he was presented with IMC 5.40.040, he agreed to go to the expression area.
Issaquah's response to Ascherl's claims was that the legislation was "narrowly tailored to serve public safety concerns, minimize congestion, and facilitate the orderly flow of pedestrian traffic during the festival."
Autumn Monahan, Issaquah's public information officer said in an e-mail message that "Issaquah created the legislation more than a decade ago to address concerns from vendors, the public and others about public safety and congestion as festival attendance increased." Attendance at this year's event is expected to exceed 180,000 people.
Kellum said the city had also argued that the law was originally motivated by politicians' campaigning activities at the festival.
"Their argument, as I understood it, was they've had problems with congestion and safety in the past when there was political speech," he said.
In her decision, Judge Pechman said the city's arguments were unconvincing, since they were primarily "speculative" about Ascherl's activities creating congestion. Further, she noted that the city allows many activities that create more congestion than Ascherl's proposed plan, and she found that the law was unconstitutional, violating Ascherl's first-amendment right to free speech.
"Since he would be continually prevented from exercising his First Amendment rights, the Court finds Ascherl will suffer irreparable harm without the injunction," she wrote.
Issaquah officials are disappointed by the ruling, but will obey it.
"The festival will have free expression areas, but Mr. Ascherl and others will also be allowed to distribute literature outside of those areas during the 2011 Salmon Days," Monahan wrote. "The restrictions on solicitation, buskers, performers, etc. are not affected by the ruling and will be enforced."
Kellum reported that Ascherl "was thrilled that the federal judge has recognized his constitutional right."
Distributing literature and talking about Jesus Christ with others "is a tenet of his faith," said Kellum. "He feels really strongly about it."
Since the injunction affects only the 2011 Salmon Days, Kellum plans to eventually seek a permanent order regarding the code, but says for now, the ball is in the city's court. Monahan said city officials plan to meet with their legal team to "assess next steps concerning our ordinance."
Salmon Days runs Saturday and Sunday, Oct. 1 and 2, from 10 a.m. to 6 p.m. daily. For information on the festival, visit www.salmondays.org.