Late last month, a federal court found that a group of animal rights activists was entitled to a preliminary injunction relating to the group’s protest activities outside of Mohegan Sun Arena in Wilkes-Barre, Pennsylvania.

Protesters outside of the Barnum and Bailey Circus in Wilkes-Barre, Pennsylvania. Source: ACLU of Pennsylvania.

The arena in question is owned by a public convention center authority but is operated by a private management company, SMG.  In 2008, SMG promulgated a protest policy that required protestors to remain located in a parking area outside of the arena.  The protest policy limited protestors’ ability to approach attendees at public events and to distribute literature.  In March 2016, SMG revised the protest policy to allow two designated protest areas of approximately 500 to 700 square feet, and located closer to the entrance gates of the arena.  The plaintiffs, including Silvie Pomicter and Last Chance for Animals sought to protest outside of the arena during the Barnum and Bailey Circus, which took place at the arena between April 28 and May 1.

In reviewing the plaintiffs’ claims, the court first held that although SMG was a private entity, the action in question was state action due to the fact that SMG operated as the manager for the convention center authority.  The parties all agreed that the properties in question were nonpublic fora.  The court determined, however, that the plaintiffs were likely to succeed on the merits of the case because the regulations in question effectively prohibited leafleting, which made the regulations potentially unreasonable in light of the purposes and characteristics of the arena and the surrounding property.

We will continue to follow this case as it progresses through the courts.

Pomicter v. Luzerne County Convention Center Auth., 3:16-CV-00632-RDM, slip op., 2016 WL 1706165 (M.D. Pa. Apr. 27, 2016).

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Photo of Brian J. Connolly Brian J. Connolly

Brian Connolly represents public- and private-sector clients in matters relating to zoning, planning, development entitlements and other complex regulatory issues.  Brian’s practice encompasses a broad range of land use matters including zoning compliance, rezonings and other regulatory amendments, planned-unit developments, development agreements, private covenants and restrictions, land use and zoning litigation, initiatives and referenda associated with land use approvals, and real estate transactions.  Brian additionally specializes in the First Amendment and land use issues associated with outdoor sign and advertising regulation, and fair housing matters in local planning and zoning.