Fight over filming kids outside Bloomington mosque heads to court

An American flag flies over the Dar Al Farooq Islamic Center.
The Dar Al Farooq Islamic Center in Bloomington photographed in May 2018. A Bloomington woman argues she has a First Amendment right to film activity at a public playground next to the mosque. Supporters of a city ordinance prohibiting that filming say mosque opponents want to harass and intimidate.
Evan Frost | MPR News 2018

A Bloomington woman is suing the city, arguing that she has a First Amendment right to film activity at a public playground next to the Dar Al Farooq mosque.

Sally Ness is challenging a new Bloomington ordinance that bans filming children at the park without parent permission. Its goal was to stop what mosque members see as intimidating behavior by strangers showing up to photograph or record video of their kids.

Videos from outside the mosque have surfaced as part of an anti-Islamic series posted to YouTube called “The Mosque Diaries.” They are produced by a right-wing social media Third Rail Talk, which has since restricted access to its main website.

The videos portray Dar Al Farooq and its worshippers as dangerous under the argument that the building violates city code.

Ness is among residents who’ve argued the mosque has been disruptive to the neighborhood. Her lawsuit against the city, Hennepin County and two police officers argues the filming restrictions are unconstitutional. She wants to continue filming at the park.

It’s not clear what, if any, role she has in the creation of the YouTube series. Ness says the city has been investigating her and that the county attorney's office is considering harassment charges against her.

"She has an absolute right as a private citizen to document these complaints and bring them to the city's attention,” said her lawyer Robert Muise. “If the city doesn't want to do anything about them and just want to claim that this is what happens everywhere else, then we need new city officials."

Ness, he added, is fed up with the city dismissing her complaints about traffic and noise. He says this isn't about race or religion — and that regardless, she has a fundamental right under the Constitution to film at public parks.

Bloomington officials said they don't comment on pending litigation. A federal court hearing is set for early January.

The mosque had been the focus of the online videos for months but leaders became alarmed in the fall when they saw Ness and others photograph children at the adjacent playground, which is used by a charter school, Success Academy.

Tensions are particularly high at Dar Al Farooq, the same mosque that was bombed in 2017. One of the Illinois men who pleaded guilty to the bombing said the attackers had hoped to scare Muslims out of the country.

Success Academy officials say they're trying to protect children who may feel harassed or intimidated. Many are Somali. The school is now trying to raise money to build its own playground.

Observers, though, say Ness is likely to prevail.

As long as the park remains public and not private property, prohibiting people from filming there is a violation of the First Amendment, said Jane Kirtley, a media ethics and law professor at the University of Minnesota.

"People of good will see a problem. They see what they view as bad conduct that is upsetting people or making feel marginalized or making people feel threatened -- it’s intimidating for me to see that woman standing on the sidewalk filming me,” she said.

“I get that. I understand that,” she added. “But this is not the constitutional way to address this problem because it's way too broad in terms of its prohibition.”

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