PHILADELPHIA (CN) – No profanity, no bullhorns and no protesting near the circus gates: Defending these rules Tuesday, a lawyer for a county-run stadium in Pennsylvania urged the Third Circuit to overturn a ruling that found them unconstitutional.
“I don’t believe there is a constitutional right to use a voice amplifier,” said Thomas Campenni, an attorney with the firm Rossen Jenkins and Greenwald.
Campenni’s client, the Luzerne County Convention Center Authority, promulgated the rules at issue in 2008 for all events at its Mohegan Sun Arena in Wilkes-Barre.
When the Ringling Bros. and Barnum & Bailey Circus came to town in 2016, a group of activists with the group Last Chance Animals won an injunction to leaflet attendees freely.
Luzerne is fighting for a reversal now after U.S. District Judge Robert Mariani held a bench trial and ruled the county’s protest rules unconstitutional.
“The policy at issue here does not stop protestors from portraying their message,” said Campenni.
Campenni defended the profanity ban in particular, noting that the county believes it applies to everyone at the arena, despite its inclusion under the protest policy.
U.S. Circuit Judge Joseph Greenaway Jr., one of three members of Tuesday’s appellate panel in Philadelphia, meanwhile found the lawyer’s argument hard to swallow.
“The constitutional problem is that it only applies to protesters,” Greenway said. “It’s not a broad policy.”
A lawyer for the protesters made a similar point in his argument, saying that sporting events and heavy-metal concerts show this policy to be targeted at protesters.
“If they’re worried about profanity, I would be more worried about what’s going on in the arena,” said Alexander Bilus, who is with the firm Saul Ewing.
Bilus also called it unreasonable to ban protestors from using a voice amplifier, saying there should be accommodations such as enforcing the policy only while the arena is broadcasting a message.
Technically the arena does not ban leafleting, but Bilus said this result is unavoidable when the arena confines protesters to small cages far from the building entrances.
“Leafleting is a vital practice and a ‘historic weapon in the defense of liberty’,” said Bilus, quoting the Supreme Court.
Judge Ambro interrupted, however, when Bilus argued that the protest zones are too far to even be seen from the arena doors.
“Yes, they can see them,” Ambro said of event patrons, referencing photographic evidence.
Bilus said that the barricades were beyond 15 feet of the entrances, and that protestors should have free range to wander with a reasonable buffer zone.
U.S. Circuit Judge Anthony Scirica rounded out Tuesday’s panel.