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.
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).