By Alina Buccella

In March of 2008 and 2009, the plaintiff, Aaron Ross, participated in a PETA protest of the visiting Barnum and Bailey Circus in Baltimore. He was arrested on both occasions by Officer Early for leaving the designated protest zone around the circus arena and refusing to comply with the officer’s warnings to return to those areas. The designated protest zones, as well as the policy for how to handle arrests of the protestors, were laid out in a Policy memo by Baltimore’s Chief Legal Counsel, Linda Barclay. The Policy provided that “any protestors” would be asked to move to and stay in one of three designated areas around the arena to avoid sidewalk congestion. After his arrests, the plaintiff sued the City and argued that the Policy constituted a facial violation of the First Amendment. The lower court granted summary judgment to the City. The plaintiff appealed, but stipulated to using intermediate scrutiny to analyze if the Policy was an appropriate time, place, and manner restriction on free speech. (For a discussion of the plaintiff’s claim of common law and constitutional tort against Officer Early, dismissed in the lower court, see the opinion here.)

The Fourth Circuit found that the Policy did not violate the First Amendment because it was a permissible time, place, and manner limitation on speech. The Policy regulated protected speech in a traditional public forum, the sidewalk surrounding the arena, and thus in order to be a permissible restriction, the City had the burden of showing that the Policy was content neutral, narrowly tailored to achieve a substantial government interest, and allowed ample alternative channels of communication. The court confirmed, even though the parties had stipulated, that intermediate scrutiny was the appropriate standard by relying on Ward v. Rock Against Racism, 491 U.S. 781 (1989).

The Policy was content neutral because it applied to “any protestors,” thus satisfying the first prong of the test for a permissible time, place, and manner restriction.

As to the second prong, in order to show that the Policy was narrowly tailored, the City had to prove that it promoted a substantial government interest that would be less effectively achieved if not for the regulation. The City also had to show that the Policy did not hinder speech any more than necessary to achieve the substantial government interest. The substantial government interest advanced by the Policy was to maintain public safety and avoid blocking the sidewalks in an attempt to accommodate both the circus patrons and the PETA protestors. The court found that the protestors were a “plausible threat to the orderly flow of pedestrian traffic and, concomitantly, public safety,” thus, the interest of the City in promoting the Policy was substantial, and the Policy helped to advance the City’s interest. The Policy also did not overreach its bounds, and the court held that it did not hinder speech any more than necessary to achieve its purpose.

Finally, the court found for the City on the third prong, noting that there were ample alternative channels for communication left open by the Policy because the protestors were able to reach their intended audience even if they stayed within the designated protest areas.

Because the City met its burden of proof on all three elements of the test, the Fourth Circuit held that the Policy was a permissible time, place, and manner restriction on protected speech in a public forum.

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