We previously reported on this case, wherein a group of animal rights activists sought to protest the Barnum and Bailey Circus outside of Mohegan Sun Arena in Wilkes-Barre, Pennsylvania. In 2016, the district court for the Middle District of Pennsylvania granted a preliminary injunction against the convention center’s protest policy, which required protesters to gather in two areas of approximately 500 to 700 square feet in the arena’s parking lot. The facts of the case are reported in our earlier blog post.
Last month, following trial, the court entered a permanent injunction in the case. The court found that the public authority that operates the arena failed to offer any evidence suggesting that protest activities caused any significant problems for the authority with respect to the flow of people into and out of the arena, or in the form of additional security costs. Although the parties stipulated that the sidewalks outside of the arena were nonpublic fora, only requiring a regulation to be reasonable in light of the purposes of the forum, the court found that the lack of evidence of any problems associated with the plaintiffs’ or others’ protest activities rendered the regulation unreasonable. The court also struck down the authority’s total ban on voice amplification, and additionally struck down the authority’s prohibition on profanity and vulgarity, finding the latter to constitute a viewpoint-based restriction and to be overbroad.
Pomicter v. Luzerne Cnty. Convention Ctr. Auth., No. 3:16-CV-00632, 2018 WL 1733307 (M.D. Pa. Apr. 10, 2018)