From Leichty v. Bethel Collegedecided on April 20 by the Tenth Circuit (Judge Robert Bacharach, joined by Judges Bobby Baldock and Joel Carson):
This appeal concerns the scope of the rights that accompany participation in a conference. By paying the required fee, individuals obtain the right to attend the conference. But under what circumstances can conference organizers expel attendees? And does expulsion subject individuals to arrest if they reappear at the conference? Here we conclude that the purchase of a ticket created an irrevocable right to attend the conference. But once the participant is expelled, his reappearance could justify an arrest for trespassing….
These questions arise from a two-day conference sponsored by Bethel College, which is a Mennonite college in the city of North Newton, Kansas. The subject of the conference was the role of Mennonites in the Holocaust.
Mr. Bruce Leichty paid the $100 attendance fee to attend the conference and planned to conduct his own evening program. On the evening program, Mr Leichty and two associates would present “unusual perspectives on the Holocaust”.
Prior to the start of the conference, Mr. Leichty handed out flyers about his own program. The organizers asked Mr. Leichty to stop distributing the flyers on the conference grounds. But Mr Leichty refused to stop until organizers called the police.
The disputes resumed at the conference when Mr Leichty rose to make a comment. One of the conference organizers reminded Mr. Leichty to stay on topic. Mr. Leichty then pointed out that Jews have different perspectives on the Holocaust. One of the conference organizers asked someone to mute Mr. Leichty’s microphone. Although his microphone was muted, Mr. Leichty continued to talk about his upcoming program.
Later that day, another conference organizer told Mr. Leichty that he was “out of the conference.” In front of Mr. Leichty, the organizer told a colleague to call the police if Mr. Leichty showed up the next day.
Undeterred, Mr. Leichty returned the following day. The college president told him to leave, but Mr. Leichty refused. College officials called the police, who arrived and arrested Mr. Leichty for trespassing. He then sued Bethel College and the town of North Newton.
The court found that under Kansas law, Leichty’s payment of the $100 registration fee gave him a contractual right to attend the conference and that his expulsion violated that contract:
The district court found that the college could revoke Mr. Leichty’s license if he did not act in good faith. And in the court’s view, Mr. Leichty’s conduct reflected a failure to act in good faith. We reject this reasoning because state law considered Mr. Leichty’s license irrevocable once he registered and paid the registration fee. See Wichita State University. Intercollegiate Athletic Ass’n v. Marrs (Kan. Ct. App. 2001) (“Although a license is generally revocable at the option of the licensor, an enforced license – a license supported by good consideration – cannot be revoked.”); see also McKim v. Carré (Kan. 1905) (stating that “even an oral license may be irrevocable, when given for good consideration and performed by the licensee”)….
Rather than questioning the irrevocable nature of the license, the college argues that continued enforcement was excused when Mr. Leichty breached his implied duty to act in good faith…. Breach of an implied good faith and fair dealing clause usually involves a question of fact. Bethel College argues that the ordinary rule does not apply because Mr. Leichty unquestionably breached the implied covenant of good faith and fair dealing by
- disregarding instructions to stop distributing flyers and
- standing to promote his event at the Bethel College conference.
In our view, Bethel College’s arguments involve questions of fact. Mr. Leichty acknowledges distributing flyers. But Bethel College implicitly assumes that its contract with Mr. Leichty prohibited it from handing out flyers on campus.
When Mr. Leichty started handing out flyers, he was told to stop. He replied that he believed he had the right to distribute them. An investigator might consider this belief reasonable, since Bethel College had not said anything earlier about its inability to promote other events. A reasonable jury might therefore conclude that
- Mr. Leichty believed in good faith that he had the right to distribute the flyers, and
- his refusal to stop had not constituted a material breach of his duty of good faith and loyalty.
The same goes for Mr. Leichty’s comment during the conference. When Mr Leichty stood up, he was told to stay ‘on topic’. But Mr. Leichty could reasonably consider his comments to be “on topic”. After all, his comment was about the Holocaust.
Mr. Leichty’s comments sparked an explosion and organizers cut Mr. Leichty’s microphone as other attendees shouted at him. Bethel College argues that Mr. Leichty improperly continued to speak after his microphone was cut off. Mr Leichty concedes he added “a few more sentences without the help of the microphone”. Even so, we conclude that a reasonable jury could conclude that his continued speaking does not constitute a material breach of its duty of good faith and fair dealing.
Nonetheless, the court held that after the college expelled Leichty and demanded that he not return, he could be properly arrested for his return:
Mr. Leichty argues that college officials had no contractual right to expel him from the conference. But Mr. Leichty’s contractual right to attend the conference did not vitiate Bethel College’s right under the law of property to exclude him from the land. See Marrone vs. Washington Jockey Club of DC (1913) (finding that a patron who buys a ticket to an event has a contractual right to enter the premises, but the landowner retains a property right to exclude the patron). When the college told Mr. Leichty to vacate the premises, he incurred an obligation to vacate and “[h]the only right was to sue the contract for breach.” …
We refer for further proceedings on the contractual claim against Bethel College.
The case has since settled, with payment to Leichty of $50,000. For more history, here is an excerpt from district court description of the facts:
The claimant planned to host an event he had organized at a nearby community hall in North Newton on the evening of March 16, 2018. The main speakers were to be two people, both Jewish, whom the claimant knew to be extremely pro-Palestine concerning Palestine/Israeli conflict. The plaintiff’s concern, which he believed these two people shared, was that “the Holocaust was being exploited in modern America…as a carte blanche, if you will, for all manner of conduct by – be it Israel or Zionists or other Judaic elites [—] that they would pull out the anti-Semitism/Holocaust card whenever it suited them.”
Prior to the Bethel conference, plaintiff contacted Paul Schrag, editor and publisher of Mennonite World Review, an independent journalism ministry in Kansas, and asked him to run plaintiff’s classified ad for his community hall event in the March 12, 2018 edition of Mennonite World Review. Schrag rejected the ad. The plaintiff then sent Schrag a pamphlet explaining “Holocaust revisionism” in an attempt to change his mind, but Schrag still refused to publish the ad. Schrag then sent an email to the organizers of the Bethel conference – John Sharp (employee of Hesston College), John Thiesen (employee of Bethel College) and Mark Jantzen (employee of Bethel College) – informing them of the requester’s plan. organizing an event and attaching the brochure….
On March 16, the first day of the Bethel conference, the applicant brought with him the two speakers who were to speak at his own event. None of them had pre-registered for the Bethel conference, and Jantzen denied the plaintiff’s request for access to the conference. According to the plaintiff, Jantzen indicated that his decision could be reconsidered the next day. After the applicant checked in, he began handing out flyers about his event (“Two Revisionist Jews Consider the Holocaust”) scheduled for that evening….