It was only a few weeks ago that the winter holidays were upon us, and with them came the usual seasonal festivities: ice skating, caroling, or perhaps a ride on a horse-drawn carriage.  But to animal rights activists in Frederick, Maryland, horse-drawn carriage rides are not a source of holiday cheer, but rather a form of animal cruelty. In Saltz v. City of Frederick, MD, the United States District Court for the District of Maryland recently addressed the First Amendment claims of one animal rights activist. 538 F. Supp. 3d 510 (D. Md. 2021).

Plaintiff Jason Saltz sued the City of Frederick and four police officers employed by the City under 42 U.S.C. § 1983, alleging that the defendants violated his First Amendment rights by denying him the ability to chant against horse-drawn carriages from a position located directly across the street from where carriage riders were waiting to embark on their rides.  He also claimed that his rights were infringed when the defendants prevented him from handing out leaflets and engaging in peaceful discussion with people waiting in line to ride.  Id. at 523.

The defendants had set up a designated “First Amendment Area” for Mr. Saltz and his fellow animal rights protestors, pursuant to an operations plan issued by the Frederick police department. Id. at 527–529.

The First Amendment Area was located about 100 feet down the block from the carriage loading zone and protestors were permitted to chant and yell within this area.  Outside of the First Amendment Area, however, protestors were only permitted to hold signs condemning the carriage rides—they could not chant.  The defendants explained to the protestors that chanting directly across the street from the carriage loading zone would disrupt and upset the carriage ride operators as well as the people waiting in line.  Mr. Saltz was told by one defendant that he could not hand out leaflets to the line of carriage riders because defendants were “trying to preserve the safety of everybody involved.” Id. at 532.  In previous years, protestors had been elbowed, pushed, and spat on by carriage riders, and the defendants claimed that protest restrictions were necessary to prevent carriage riders from committing additional assaults on the protestors.

In addressing defendants’ motion to dismiss (which was also a motion for summary judgment in the alternative), the court emphasized the fundamental principle of First Amendment jurisprudence that the “listener’s reaction to speech is not a content-neutral basis for regulation.” Id. at 544 (quoting Forsyth County v. Nationalist Movement, 505 U.S. 123, 134 (1992)). While the court recognized that preserving public safety is a content-neutral basis to regulate speech, safety concerns arising from a prediction of how listeners might react to speech cannot be separated from the content of the speech. The court concluded that defendants had placed content-based restrictions on Mr. Saltz’s speech, which justified the application of the strict scrutiny test.

The court went on to find that the restrictions did not survive strict scrutiny because defendants had failed to present sufficient evidence to show that the restrictions were narrowly tailored to achieve a compelling governmental interest.  The defendants had not met their burden to establish that the protest restrictions were the least restrictive means to protect public safety, as their brief simply did not address this part of the analysis.  Although the court acknowledged that the protest restrictions might pass strict scrutiny if the defendants fleshed out the basis for the restrictions at trial, the parties subsequently reached a settlement and the case was dismissed in December of 2021.