Nickname petition fight moves to court

Attorneys will come together in a Grand Forks courtroom again Tuesday to spar over whether Fighting Sioux nickname supporters should be able to solicit petition signatures inside Ralph Engelstad Arena.

They will wrestle with questions that have challenged North Dakota courts before, including the right of free speech in private vs. public or quasi-public settings.

In a 1994 case that reached the state Supreme Court, Robert Bolinske of Bismarck claimed the North Dakota State Fair Association violated his rights to free speech by not allowing him to freely circulate initiative petitions at the fair.

A district court ruled for the fair association, which had invoked standing rules governing such activity. Bolinske appealed, but the state Supreme Court upheld the decision.

Other potential precedents include a 2009 decision involving Grand Forks landlord and social activist Roland Reimers and his efforts to circulate petitions at the University of North Dakota, a 1992 decision concerning a Fargo abortion provider and abortion protesters, and a 1991 case involving abortion protesters inside a Jamestown, N.D., mall.

Jack McDonald, a Bismarck attorney who serves as counsel for the North Dakota newspaper and broadcasters associations, said the North Dakota Supreme Court has viewed these “public forum” cases with special scrutiny to ensure that free speech is protected as much as possible, especially in university settings.

He said the court uses a reasonable, content-neutral standard in reviewing restrictions placed on time, location and manner of expression. It seeks to determine whether a restriction is “narrowly tailored to meet the government need for public safety and leaves open ample alternatives for open communications channels.”

McDonald said the cases “always raise interesting free speech questions, since in each instance the ‘open forum’ settings are usually different from similar cases.”

Deadline looming

Under direction of the State Board of Higher Education, UND stepped up its transition away from the nickname and logo last month, changing the names of various groups, activities and media platforms and asking media outlets to cease using the name and logo as of Jan. 1.

But the Spirit Lake Sioux Tribe and others continue their effort to maintain or restore the Fighting Sioux name and logo, and they took their campaign to Grand Forks County District Court late last month. Just hours prior to a weekend UND hockey series with Harvard, they sought an injunction that would allow them to circulate petitions inside the arena.

One petition would force a referendum on legislative action in November that opened the door to retirement of the name and logo. The other proposes an initiated measure asking voters to place the nickname in the state Constitution.

The Feb. 7 deadline to file 13,500 signatures on the referendum petitions is fast approaching, attorney Reed Soderstrom argued, and inside the arena — packed with UND hockey fans — would be the best place to collect signatures. Petition backers earlier had solicited signatures in designated areas outside and off arena grounds, but wind, cold, darkness and distance from people arriving for the games made that too difficult, they said.

After hearing arguments from Soderstrom and Patrick Morley, representing the Engelstad Arena, Judge Sonja Clapp denied the request for an immediate injunction, but she said she would accept briefs and further argument at a hearing this week — in time for a decision before this weekend’s hockey series with Minnesota.

The resumed hearing is set for 10 a.m. Tuesday in the Grand Forks County Courthouse.

N.D. State Fair

In July 1992, Robert Bolinske was chairman of the sponsoring committee for an initiated measure to create an environmental protection and recycling fund, which would be built through fees on the disposal of waste.

He took his petition to the state fair in Minot, but the fair manager, citing fairground policy, told him he could not freely roam the fairgrounds soliciting signatures. He would have to make his appeal from a leased booth.

Bolinske, a Bismarck attorney, filed a complaint, but the trial court concluded that restrictions on soliciting at the fair did not violate his free speech rights or his right under the state Constitution to propose laws through the initiative process. The Supreme Court agreed, finding that the fair’s restrictions regarding time, place and manner of petition activity, “necessary for the safety and convenience of fair patrons and for maintenance of traffic flow,” did not violate his rights.

The First Amendment guarantee of freedom of speech “does not guarantee the right to communicate one’s views at all times and places or in any manner desired,” the Supreme Court said, citing a 1992 case involving the Fargo Women’s Health Organization and Lambs of Christ, a group opposing abortion.

Justice Dale Sandstrom dissented in the State Fair decision.

“Financially supported by the … legislature, the North Dakota State Fair Association seeks to block quiet and peaceful actions of those who would lawfully override decisions of the legislature,” he wrote. “The majority finds this state action ‘reasonable.’ I do not.

“The right to free speech, the right to peaceably assemble and petition the government for redress of grievances, and the state constitutional rights of initiative and referendum are part of the fabric of our liberty. The majority too easily permits state action to tear that fabric.”

Public, private

Unlike the State Fair, a public entity operating on public property, Engelstad Arena is a privately owned facility on ground that is leased from UND, a state institution.

Representing the arena at the initial hearing before Clapp on Dec. 30, Morley argued that free speech guarantees are aimed “against abridgment by government, federal and state, not private entities.”

He said the arena is concerned about a precedent being set that could be used by many political, social, religious and other groups.

Soderstrom argued that the arena is private “but only to a limited extent” because of the UND arrangement, and that the petitioners sought only a table in an appropriate place inside the arena. They had no plans to be disruptive.

“Plaintiffs acknowledge that reasonable time, place and manner regulations may be implemented by the REA,” according to their written request for the injunction. “However, the REA has a policy that completely bans petition circulation and freedom of speech in its entirety while in the course of acting as a public forum during hockey games.

“The REA policy is not narrowly tailored, as required (by law or precedent), to achieve any significant government or other interest. Plaintiffs’ request is not overwhelming nor will it cause a disturbance. Plaintiffs wish to gather signatures where there is light, where there is heat, and where crowds of people are located.”

Chuck Haga is a reporter at the Grand Forks Herald, which is owned by

Forum Communications Co.

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