Argued: April 16, 2019.
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
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.
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.
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.
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. The concourse is generally open to the
public but primarily used by patrons attending Arena events.
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").
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. 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
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,  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.
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.
District Court ruled in favor of Plaintiffs and found all
three restrictions violated the First
Amendment. 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. Defendants now appeal.
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.").
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 ...