Excelsior reaches settlement with man who sought to preach downtown

The Excelsior City Council voted unanimously Tuesday to pay a $1 settlement and $90,000 in legal fees to a man who wanted to preach using amplification in the city's downtown.

The plaintiff, David Miller of Kerkhoven, Minn., said in a March 2022 lawsuit that his rights of religious expression and free speech were violated by the city's requirement of a $150-per-day permit to use a sound system to preach downtown in April 2020. Miller wanted to use a sound system so that he could be heard without having to yell, his attorneys wrote in the lawsuit.

"I believe that the Bible commands Christians to go out and share the gospel message," Miller said in an interview Tuesday. Miller is a high school science teacher but said he often travels throughout the state in an effort to spread his religious beliefs. He prefers open-air preaching, he said, because it was the preferred method of many biblical figures.

Miller will receive $1 from the city while the public interest law group representing him, the Tennessee-based Center for Religious Expression, will receive $90,000 for its attorneys' costs.

The center declined to comment Tuesday, and Excelsior officials did not respond to requests for comment.

After Miller's initial objections, the city offered to lift a requirement that he provide 30 days' notice to use a sound system downtown. In February 2022, city staff asked that Miller go before the council to ask to have the $150 fee waived, but council records do not show his request on any agendas that month. Miller's attorneys filed the lawsuit a month later.

In August, U.S District Court Judge Eric Tostrud blocked Excelsior from enforcing its ordinances around amplified sound downtown, writing that they had the effect of banning all amplified sound in downtown Excelsior. The ban, Tostrud wrote, burdened people's speech more than it benefited the public.

In late 2022, the city changed those ordinances, according to a statement from Excelsior City Attorney Kevin Staunton included in council meeting documents.

"Given the judge's ruling on the preliminary injunction motion (and our subsequent decision to amend the ordinance), it is highly likely that plaintiff would ultimately have prevailed in this matter," Staunton wrote in his message to council members. "Continuing the litigation would only increase the amount of the ultimate fee award."

The city is on the hook for the first $1,000 of the settlement, with the rest covered by the city's insurance.

"If someone is preaching on a sidewalk, it is a free speech issue," said Michael K. Steenson, a Mitchell Hamline School of Law professor who teaches constitutional law.

There can be limits on what Steenson termed the "time, place and manner" of speech, but not if they are enforced arbitrarily, or based on what kind of speech is being made — such as treating amplification-system permits differently depending on if the system is used for a public event or preaching on the sidewalk.

Miller and the Center for Religious Expression sued the city of St. Paul in 2015 after Miller was blocked from preaching and distributing religious pamphlets near an entrance to the Irish Fair of Minnesota on Harriet Island in 2014. That case was settled for $400 in 2017.

Miller said he and the Center for Religious Expression have challenged otherordinances that he sees as interfering with his interest in preaching to the public. The Center's attorney has sent demand letters to numerous other Minnesota cities that Miller believes have violated his rights, he said, though none of the others have ended up in court.