In a case that we reported on previously, the Third Circuit Court of Appeals has entered a ruling in favor of a group of animal rights activists that wished to protest the Barnum and Bailey Circus in a government-owned convention center and arena in Wilkes-Barre, Pennsylvania.

The facts of the case can be found in our earlier posts.  At issue on appeal were questions of whether the government could limit the area allowed for protests at the arena, whether the protesters could be prohibited from using profane language, and whether the convention center could prohibit the use of sound amplification.

In its decision, the appeals court found that the government’s decision to sequester protesters in a particular portion of the arena was constitutional, as the parties agreed that the arena was a nonpublic forum.  The court also agreed that it was reasonable to limit the location of the protest activity, because conflicts between protesters and arena goers could inhibit traffic flow in and and around the arena.  Nevertheless, the appeals court found for the protesters on the other two issues.  The court found that restricting the use of profane language and sound amplification were not reasonable, because they were both intended to avoid offense and annoyance of other patrons of the arena.  The court agreed with the district court that the evidence put on by the government was insufficient to demonstrate how the protest policy would achieve those ends.

Pomicter v. Luzerne County Convention Ctr. Auth., ___ F.3d ___, 2019 WL 4593319 (3d Cir. 2019).