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Pomicter v. Luzerne County Convention Center Authority

United States Court of Appeals, Third Circuit

September 23, 2019


          Argued: April 16, 2019.

          On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 3-16-cv-00632) District Judge: Honorable Robert D. Mariani

          Donald H. Brobst Thomas J. Campenni [ARGUED] Robert L. Gawlas Rosenn Jenkins & Greenwald, Counsel for Appellants

          Alexander Bilus [ARGUED] Amy S. Kline Meghan J. Talbot Saul Ewing Arnstein & Lehr, Mary Catherine Roper American Civil Liberties Union of Philadelphia, Vic Walczak American Civil Liberties Union of Philadelphia. Counsel for Appellees

          Before: AMBRO, GREENAWAY, JR., and SCIRICA, Circuit Judges.


          SCIRICA, Circuit Judge.

         This appeal involves government restrictions on speech at a publicly owned arena in Wilkes-Barre, Pennsylvania. The primary issue we must resolve is whether the government's policy sequestering all protest activity to enclosures by each entrance of the Mohegan Sun Arena is facially unconstitutional under the First Amendment. In a public forum-a government space dedicated to the free exchange of ideas-the governing authority may not confine speech in this way without showing its restrictions are narrowly tailored to serve a significant interest. But the animal rights activists challenging the policy have conceded that the Arena's concourse is a nonpublic forum, a space which the government may reasonably reserve for its intended purpose. As the concourse's function is to facilitate movement of pedestrians into and out of the Arena, we cannot find unreasonable a policy sensibly designed to minimize interference with that flow. Accordingly, we will reverse the District Court's order because the policy is constitutional. But because the government has not met its burden to show the other two policies at issue-bans on profanity and voice amplification-are reasonable, we will affirm the court's injunction of those policies.



         Defendant Luzerne County Convention Center Authority owns the Mohegan Sun Arena, a large event space in Wilkes-Barre, Pennsylvania. The Arena-which holds up to 10, 000 people-hosts athletic and other commercial entertainment events, including national touring acts like the circus, concerts, Disney on Ice, and World Wrestling Entertainment. Though the Arena is publicly owned, it operates as a business that must earn enough to pay its expenses. The Authority contracts with Defendant SMG to manage the Arena's day-to-day operations.

         The Arena building is set back from the public road and surrounded by several large parking lots. Patrons attending events at the Arena drive from the public road onto an access road, park in one of the lots, and then walk to the Arena's entrances. This is the only way to access the Arena, as it is separated from the public road by a grass median and fence. A large concrete concourse connects the parking lots to the Arena. The concourse houses two entrances for the Arena's patrons, termed the "East Gate" and "West Gate, " and includes a pathway between the two gates.[1] The concourse is generally open to the public but primarily used by patrons attending Arena events.

         Under the Arena's protest policy, "[a]ll persons are welcome to express their views" at the Arena. App. 400. The Arena's policy imposes several limits on protest activity, three of which are at issue here. First, protesters must stand within "designated area[s]" on the concourse and "[h]andouts can only be distributed from within" those areas (the "location condition"). Id. The designated areas are two "rectangular enclosure[s] constructed from bike racks" that are 500 to 700 square feet and set up on the concourse next to the East and West Gates. Pomicter v. Luzerne Cty. Convention Ctr. Auth., 322 F.Supp. 3d 558');">322 F.Supp. 3d 558, 565 (M.D. Pa. 2018) (hereinafter Pomicter II). Second, the policy bans protesters from using profanity and "promotional verbiage suggesting vulgarity or profanity" (the "profanity ban"). App. 400. Finally, the protest policy prohibits any artificial voice amplification (the "amplification ban"). Id.


         In 2016, Silvie Pomicter and Last Chance for Animals (LCA) sued the Authority and SMG, contending the Arena's protest policy infringes their free speech rights. In a facial challenge, they allege the policy violates the First Amendment of the United States Constitution and Article I of the Pennsylvania Constitution.[2] Pomicter-who, along with LCA, opposes the use of animals by circuses-had protested at past circus performances at the Arena, and she alleged her confinement to the enclosures limited her ability to communicate with patrons. Plaintiffs sought declaratory and injunctive relief prohibiting Defendants from enforcing the location condition, the profanity ban, and the amplification ban.

         Immediately after filing their complaint, Plaintiffs moved for a preliminary injunction challenging the location condition only. They planned to protest at upcoming circus performances at the Arena and sought to protest and distribute leaflets outside the designated areas. After holding an evidentiary hearing, the District Court granted Plaintiffs' motion in part, finding the location condition "unreasonable 'in light of the characteristic nature and function' of the Arena." Pomicter I, 2016 WL 1706165, at *5 (quoting United States v. Kokinda, 497 U.S. 720, 732 (1990)). It crafted a less restrictive policy in its injunction. The injunction allowed up to twenty protesters to distribute literature and talk to patrons within a circumscribed section of the concourse, [3] but protesters could not approach anyone in line or otherwise "block the ingress or egress of patrons." App. 107.

          Plaintiffs protested under the terms of the preliminary injunction at circus performances at the Arena in 2016 and in 2017. The Court later held a bench trial. Pomicter testified that, during the circus protest in 2016, twelve protesters left the designated areas to protest on the concourse. They were able to distribute far more literature than the protesters in the designated areas, who attracted little attention from patrons. Plaintiffs also introduced videos of the protest, which showed mainly nonconfrontational interactions between patrons and protesters, with no abnormal congestion created on the concourse.[4]

         While Plaintiffs focused on the circus protests under the terms of the injunction, Defendants emphasized that the policy was designed to deal with the range of potential groups that may protest at the Arena. Brian Sipe, the Arena's General Manager, testified that, while Plaintiffs were not unruly protesters, the Arena expected other groups may be less cooperative. Because the Arena may not be able to effectively manage protesters outside the designated areas, the location condition minimizes congestion and security risks, and allows law enforcement to more easily control crowds at the Arena.

         The District Court ruled in favor of Plaintiffs and found all three restrictions violated the First Amendment.[5] As to the location condition and amplification ban, the Court discounted Defendants' proffered explanations for the policies, finding them speculative and unreasonable. See Pomicter II, 322 F.Supp. 3d at 571. As to the profanity ban, the Court held it "unreasonably singles out First Amendment activity by imposing" the ban "on protesters alone." Id. at 577. It entered judgment for Plaintiffs and enjoined Defendants from enforcing the three restrictions, though it noted more carefully crafted restrictions may be permissible.[6] Defendants now appeal.[7]


         The First Amendment, applied to state and local governments through the Fourteenth Amendment, prohibits laws and regulations "abridging the freedom of speech." U.S. Const. amend. I. As noted, the Arena's protest policy confines all protest activity to the designated enclosures, in addition to banning profanity and artificial voice amplification. Our precedent is clear that these restrictions implicate protected speech. See Brown v. City of Pittsburgh, 586 F.3d 263, 269 (3d Cir. 2009) ("[L]eafletting, sign displays, and oral communication . . . are indisputably protected forms of expression.") (internal quotation marks omitted); Startzell v. City of Philadelphia, 533 F.3d 183, 199 n.10 (3d Cir. 2008) ("[A]mplified speech, such as through the use of bullhorns, is protected expression.").

         Protected speech is not immune from regulation. See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 799 (1985) ("Even protected speech is not equally permissible in all places and at all times."). The forum in which the speech takes place governs what regulation is permissible, and, in a nonpublic forum ...

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