ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Saturday, June 1, 1996 TAG: 9606030076
SECTION: VIRGINIA PAGE: C-3 EDITION: METRO
SOURCE: JON CAWLEY STAFF WRITER
MEMO: ***CORRECTION***
Published correction ran on June 2.
Correction
In a story Saturday about Roanoke Festival in the Park Inc.'s appeal
of a federal judge's ruling, quotation marks were incorrectly inserted
around a paraphrase of U.S. District Judge James Turk's order. Also,
Festival Executive Director Wendi Schultz's name was misspelled.
Roanoke Festival in the Park will appeal an injunction allowing a Libertarian candidate for Congress to distribute campaign literature on festival grounds.
The appeal will be heard by Judge H. Emory Widener Jr. of the 4th U.S. Circuit Court of Appeals at 9 a.m. today in Abingdon, said the candidate, Jay P. Rutledge III.
U.S. District Judge James C. Turk ruled Thursday that Rutledge's right to distribute literature should not be interfered with should he enter festival grounds.
In granting the injunction, Turk found that there was some evidence of a conspiracy between the festival and the city that deprived Rutledge of his rights.
"Even if there weren't a conspiracy, there still may be governmental action involved, because the festival operates with a permit issued by the city," Turk ruled.
The festival board argues that it is a nonprofit organization and not a governmental agency and cannot infringe on someone's right to free speech, said executive director Wendi Shultz.
The festival's attorney, Mark Loftis, cited a 4th Circuit decision in the case of autoworkers in North Carolina who were turned down for a booth by the Gaston Festival, which was held on public streets.
The court upheld the festival's position that it was not a governmental entity or, legally, a "state actor" subject to the First Amendment.
Rutledge was denied booth space at the festival because none was left by the time he called, Shultz testified Thursday.
Rutledge then set up a booth across the street in a commercial parking lot. Last Saturday, he was asked to leave by a festival organizer as he gathered signatures for a ballot petition on a sidewalk outside Elmwood Park.
He returned the next day and was told by an off-duty Roanoke police officer working security for the festival that he was not violating any city ordinances by standing on the sidewalk. Shortly after that, Rutledge said, the same officer returned with a festival organizer and told him he had to leave.
During Thursday's hearing city attorney Wil Dibling showed Turk a letter dated two years ago in which he notified the festival that city police officers - on duty or off - were not to be used to enforce the festival's leafleting ban.
If festival organizers lose the appeal, they will have to decide whether to honor Turk's injunction for everyone or just Rutledge. The injunction is narrowly written to apply only to Rutledge.
Staff writer Jan Vertefuille contributed to this report.
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