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).

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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.