First Amendment Challenge to City Festival Ordinances

May 21, 2020, Department, by James C. Kozlowski, J.D., Ph.D.

2020 June Law Review First Amendment Challenge to City Festival Ordinances 410

For an enhanced digital experience, read this story in the ezine.

In the case of O’Connell v. City of New Bern, 2020 U.S. Dist. LEXIS 41179 (E.D. N.C 3/10/2020), plaintiffs claimed the defendant City of New Bern had violated their First Amendment rights by applying the City’s picketing and noise ordinances to their activities. New Bern, North Carolina, Code of Ordinances § 66-84(a), (b), and (d) (2019).

Plaintiffs Patrick O’Connell and Jason Crowley, along with other individual plaintiffs, acted to spread awareness of their views regarding religious, political and social topics. Specifically, plaintiffs’ message was one of hope and salvation that Christianity offers. Plaintiffs shared their faith in various ways, including distributing free literature, carrying portable signs or a replica of the cross of Christ’s crucifixion, recording public events for commentary and distribution, and engaging others in respectful, one-on-one discussions about Jesus Christ and the Christian faith.

In 2015 and 2017, plaintiffs attended Mumfest for the purpose of preaching the Gospel to festival attendees. Mumfest is an annual fall festival held for the past 37 years in the City of New Bern. Mumfest is open to the public free of charge, and the festival is not an expression of a particular message. The public is invited to enjoy a variety of entertainment, attractions, exhibits and food in New Bern’s historic downtown and along its waterfront. Most of the attractions, displays, exhibits and vendors are located on defendant New Bern’s sidewalks and streets.

In 2015 and 2017, an estimated 100,000 people attended Mumfest each year. During the festival, New Bern’s streets, sidewalks and public areas were densely crowded in a relatively small space. In the interest of “maintaining public safety, crowd control, the flow of pedestrian and vehicular traffic, and access to buildings abutting public sidewalks and driveways,” New Bern had enacted picketing and noise ordinances.

The picketing ordinance was applicable to demonstrations and protests that included “the distribution of leaflets or handbills, the display of signs and any oral communication or speech, which may involve an effort to persuade or influence, including all expressive and symbolic conduct, whether active or passive.” Consistent with the ordinance, picketing could be conducted on “public sidewalks, in any city-controlled park, or in other city-owned areas normally used or reserved for pedestrian movement,” but not “on the portion of the public roadway used primarily for vehicular traffic.” Further, picketing could not “disrupt, block, obstruct or interfere with pedestrian or vehicular traffic.”

In addition, picketing by individuals carrying written or printed placards or signs or flags, or banners on city sidewalks or city-owned areas had to “allow safe and unobstructed passage of pedestrian or vehicular traffic.” Further, picketing signs, flags or banners could be carried on a staff or pole, blunt on both ends, made of corrugated material, plastic or wood, but not metal or metal alloy, and the length could not exceed 40 inches and a width of three-quarter inches in diameter.

New Bern also had a city noise ordinance that prohibited “loud, raucous and disturbing noise.” Under the ordinance, prohibited noise included “any sound which because of its volume level, duration, and character annoys, disturbs, injures, or endangers the comfort, health, peace, or safety of reasonable persons of ordinary sensibilities” heard upon the public streets and parks within the limits of the city.

The noise ordinance also prohibited: “The use or operation of any mechanical or electrical device, apparatus, or instrument to amplify, intensify, or reproduce the human voice, or to produce, reproduce, intensify, or amplify any other sound when the sound from such activity is clearly audible more than 100 feet from the device, apparatus, or instrument.”

Mumfest 2015
In 2015, several of New Bern’s police officers approached plaintiffs and their group when they arrived at Mumfest and told them that they could not bring their nine-foot cross into the festival, because it was taller than 40 inches and more than three-quarter inches in diameter.

Plaintiff O’Connell asked to talk to the officer’s supervisor, Todd Conway. Conway reiterated the officers’ point, telling plaintiff O’Connell that he could not bring the cross into the event because it was taller than 40 inches and more than three-quarter inches in diameter. O’Connell, nonetheless, attempted to enter the festival with his cross, but was physically blocked by the officers.

Shortly thereafter, O’Connell stood on a step stool in the middle of the road adjacent to barricades at the Middle and Broad Street intersection and used a megaphone to preach to individuals inside Mumfest. Officers approached plaintiffs at the barricade and advised them multiple times that they could not use the megaphone that amplifies sound more than 100 feet, pursuant to defendant New Bern’s noise ordinance.

After plaintiffs were told to turn down the megaphone, Conway instructed plaintiffs to move because a paid performer was setting up in the intersection and plaintiffs were interfering with the performance. Plaintiff O’Connell continued to preach for several minutes. Conway, again, instructed plaintiffs to move under threat of arrest. Under protest, plaintiffs moved to the sidewalk adjacent to the intersection where they preached for the rest of the day.

Shortly after moving, Conway instructed two firefighters to park their utility vehicle between plaintiffs and the festival attendees gathered in the intersection. Conway directed the firefighters to place the cart in reverse so it would make a beeping sound. Plaintiff Crowley and his associates asked Conway to instruct the firefighters to turn the buzzer off, but Conway refused, saying that it was not his cart and he could not make them turn it off. Later in the day, Conway returned with another utility cart he was driving, positioned it between plaintiffs and festivalgoers, and placed it in reverse to create a beeping noise.

At several other points during the day, plaintiffs and their associates entered the festival area to preach and distribute literature. Relying on Mumfest rules promulgated by the festival organizer, Conway told Crowley he was not allowed to distribute literature in the festival area. In total, plaintiffs and their group were in New Bern for Mumfest 2015 for several hours.

Mumfest 2017
In 2017, plaintiff O’Connell, again, attempted to attend Mumfest to preach the gospel inside the event. O’Connell entered the festival at the traffic circle and preached for about two or three hours. After about the first hour and a half, he was approached by officer Wilson. Wilson told O’Connell that he needed to take the cross out of the festival area and keep moving. After O’Connell requested to speak to Wilson’s supervisor, Sergeant Sneeden arrived. Sneeden agreed that O’Connell did not need to take the cross out of the festival, but it had to be disassembled. The cross was approximately 30 inches when disassembled, though it is not part of O’Connell’s message when disassembled. O’Connell kept his cross collapsed during the entire time he preached in order to avoid arrest. Plaintiffs planned to go to New Bern’s public spaces during festivals and other events in the future to share their religious message with the public.

In both 2015 and 2017, other individuals were allowed to carry five-foot-tall “windmills” on the sidewalks and streets in and around the Mumfest festival areas during the Mumfest festival.

Protected Speech Activities
In pertinent part, the First Amendment provides: “Congress shall make no law abridging the freedom of speech.” In addressing plaintiffs’ freedom of speech claim, the federal district court would first determine whether “the activity is speech protected by the First Amendment.” In this particular instance, the court had “no doubt that as a general matter peaceful picketing and leafletting are expressive activities involving ‘speech’ protected by the First Amendment.”

Further, the court noted: “all public streets are held in the public trust and are properly considered traditional public fora” for First Amendment activities. Since the “transactions or occurrences in the instant case all occurred on the streets and sidewalks of New Bern,” the court found “the restrictions on plaintiffs’ protected speech were applied in a traditional public forum.” The federal district court would, therefore, determine whether the City’s “justifications for exclusion from the relevant forum” satisfied the following constitutional standard for regulating First Amendment activities in a public forum:

The government may impose restrictions on the time, place, and manner of speech protected by the First Amendment, provided that those restrictions (1) are justified without reference to the content of the regulated speech, (2) that they are narrowly tailored to serve a significant governmental interest, and (3) that they leave open ample alternative channels for communication of the information.

As noted by the federal district court: “The pertinent issue with respect to content neutrality is whether the city has regulated speech because of disagreement with the message it contains.”

In this particular instance, the court acknowledged New Bern had a legitimate and significant governmental interest in “ensuring public safety and order and promoting the free flow of traffic and sidewalks.” Further, the court found the “flow of the crowd and demands of safety are more pressing” in the context of a city fair, like the Mumfest, including “a significant interest in regulating loud and raucous noises.”

According to the court, New Bern’s regulations on picketing and noise “need not be the least restrictive or least intrusive means” of serving the city’s legitimate governmental interests. On the other hand, the federal district court acknowledged that narrowly tailored, content-neutral regulations must not “burden substantially more speech than is necessary to further the government’s legitimate interests.” Further, for the picketing and noise ordinances to pass constitutional muster, the court found New Bern had to “make some evidentiary showing that the recited harms are real, not merely conjectural, and that the challenged regulation alleviates these harms in a direct and material way.”

The federal district court further noted that “a valid time, place, and manner restriction” must also leave open “ample alternative channels for communication.” According to the court, ample alterative channels for communication must “allow the ability to communicate effectively” and allow “the more general dissemination of a message.”

Content Neutral Height Restriction
In this particular instance, O’Connell challenged his being “restricted from bringing his cross into Mumfest or expanding the cross.” In the opinion of the federal district court, “application of the prohibition on picketers bringing items over 40 inches tall into the festival was content neutral.” Further, the court found the ordinance was “narrowly tailored based on a specific height requirement of 40 inches.”

O’Connell had argued New Bern had failed to “demonstrate that prohibiting his nine-foot cross was content neutral or served significant government interests in public safety and traffic flow because other festival attendees had carried five-foot-tall ‘windmills’ in the festival. As characterized by the court, this argument did not “raise a meaningful comparison,” because plaintiffs had failed to “come forward with facts showing the festival attendees carrying windmills were subject to defendant New Bern’s picketing ordinance or were engaging in expressive activity.” In other words, plaintiffs had failed to demonstrate that the windmills at Mumfest were in any way intended to convey or connect to a message as part of any protest or demonstration.

In addition, the federal district court found O’Connell had “ample alternative channels of communication to disseminate his religious message.” Specifically, the federal district court noted O’Connell “could have carried a cross into the festival to aid in disseminating his message if the cross was no more than 40 inches tall, or that he could display the nine-foot cross on the public sidewalks and streets outside the festival area.”

Megaphone Restriction
Plaintiffs also claimed New Bern had violated their First Amendment rights by “not allowing them to use a megaphone to preach.” The federal district court, however, found the city ordinance restricting sound amplification devices was “content neutral,” because “application of the ordinance did not depend on the fact that plaintiffs were using the megaphone to project a religious message to festivalgoers.” Further, the court found application of the noise ordinance in this particular instance “advances a significant government interest in restricting loud and raucous noises” and the “100-foot noise limitation for sound amplification devices” was narrowly tailored to serve that interest.

According to the federal district court, plaintiffs also had “ample alternative channels of communication” because they were “not prohibited from using the megaphone at a lower volume, and they were free to preach using their voices without amplification.” As a result, the federal district court concluded application of the noise ordinance to plaintiffs’ use of a megaphone did not impermissibly restrict plaintiffs’ religious message to Mumfest attendees in violation of the First Amendment.

Literature Distribution Rule
Plaintiff Crowley also claimed defendants had violated his constitutional rights by telling him not to distribute literature inside the festival area in 2015. According to the court, it was “undisputed that defendant Conway told plaintiff Crowley that he could not distribute literature, and if he did so, he could be asked to leave and then arrested for trespass under festival rules.”

According to the festival organizer, literature distribution was prohibited in the vendor booth area if the person seeking to distribute literature is not stationed at a booth. As noted by the federal district court, plaintiffs could have “rented a booth at Mumfest to distribute literature but did not to do so.” Moreover, the court found a festival rule limiting the distribution of literature to booths was a valid time, place and manner restriction. In this particular instance, the court found no evidence that the festival rule was so vague as to vest officers with “unbridled discretion” in arbitrarily allocating booths at Mumfest based on the content of the message to be conveyed.

Accordingly, under the circumstances of this case, the court concluded: “application of the rule prohibiting literature distribution except on the sidewalk or at a vendor booth is content neutral.” Moreover, the court found this rule was “narrowly tailored to serve a significant government interest in controlling the flow of traffic on defendant New Bern’s streets, considering Mumfest’s large number of attendees.”

Plaintiff Crowley had reiterated his argument that the festival rule did not leave ample alternative channels of communication. The federal district court, however, found no support for Crowley’s argument that he was “banned from orally propagating his views by preaching at Mumfest.” On the contrary, the court held “Crowley had ample alternative channels of communication, where he was able to converse with festival attendees, distribute literature to attendees on the public sidewalks adjoining Mumfest.” As a result, the court held “the Mumfest anti-solicitation rule did not violate plaintiff Crowley’s First Amendment rights.”

Threat to Public Safety?
Plaintiffs further challenged defendant Conway’s decision to place a beeping cart in front of plaintiffs on two different occasions in 2015. Defendant Conway testified that he placed a beeping cart in between plaintiffs and festival attendees because people were “getting aggravated” and “becoming aggressive” toward plaintiffs’ group. Conway testified that individuals waived a rainbow flag in plaintiff O’Connell’s face and yelled at him. In the past, individuals threw Mountain Dew bottles at plaintiff O’Connell, threatened plaintiff O’Connell with violence, and assaulted the police officers guarding plaintiff O’Connell.

As noted by the federal district court, “when clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the state to prevent or punish is obvious.” That being said, the court acknowledged: “Constitutional rights may not be denied simply because of hostility to their assertion or exercise.” Further, the court would sustain a restriction on constitutionally protected content-based speech “only if the government can show that the regulation is a precisely drawn means of serving a compelling state interest.”

In this particular instance, plaintiff Crowley had testified that “there was no threat of violence” in 2015. Based upon the following facts, the court found the evidence was “susceptible of more than one reasonable inference as to whether there was an “immediate threat to public safety” and whether defendant Conway’s actions were narrowly tailored to respond to a compelling state interest”:

Defendant Conway repeatedly testifies that although no violence or threats of violence had yet occurred at Mumfest, he anticipated violence based on the reactions of the crowd to plaintiffs’ speech, as well as prior encounters between plaintiffs and Mumfest attendees. However, the footage of defendant Conway calling over the utility cart to separate plaintiffs from the crowd does not readily disclose any acts portending violence by festival attendees. Other video footage demonstrates and provides the basis for an inference that, even where festival attendees challenged plaintiffs, challenges did not result in altercations.

Under these circumstances, the federal district court found there was “a genuine issue of material fact regarding whether defendant Conway’s actions appropriately redressed a threat to public safety caused by spectators reacting to plaintiffs’ preaching.”

Free Exercise of Religion
As cited by the federal district court, the First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Further, as noted by the court, the Free Exercise Clause of the First Amendment provides protection against a law that “discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons.”

According to the court, any such governmental regulation of religious activity is “constitutionally valid only if it is narrowly tailored to achieve a compelling state interest.” Moreover, the court acknowledged: “the Free Exercise Clause does not inhibit enforcement of otherwise valid regulations of general application that incidentally burden religious conduct.” In this particular instance, the federal district court found plaintiffs’ speech claims mostly involved “neutral regulations of general applicability that incidentally burden plaintiffs’ religious conduct.”

The court, however, questioned the motivation behind “Conway’s decision to move plaintiffs from Middle Street to the sidewalk and to place a beeping cart in front of plaintiffs while preaching.” If “these actions were taken due to the crowd’s response to plaintiffs’ religious message,” the federal district court would subject this decision to “strict scrutiny.” Specifically, the court would require a trial in which New Bern would have the significant burden of “showing that defendant Conway’s actions were narrowly tailored to not burden plaintiffs’ religion.”

As described above, the federal district court held the challenged ordinance was content neutral. Specifically, the court found the picketing ordinance “does not address the specific message invoked by the signs, flags, or banners carried on staves or poles.” Moreover, the court found the stated purpose of the picketing ordinance served “substantial government interests,” viz., “to allow safe and unobstructed passage of pedestrian or vehicular traffic on sidewalks or other city-owned areas.”

The federal district court, therefore, granted summary judgment in favor of New Bern dismissing plaintiffs’ First Amendment claims based on “plaintiff O’Connell carrying a nine-foot-tall cross.” Similarly, the court held the ordinance was content neutral in restricting “plaintiffs’ use of a megaphone, and plaintiff Crowley being prohibited from distributing literature in the vendor area at the festival.”

The federal district court, however, denied New Bern’s request for summary judgment on a totally separate First Amendment claim under the circumstances of this case. The court would allow plaintiffs’ lawsuit to proceed to trial on the sole issue of whether defendant Conway had infringed plaintiffs’ freedom of speech rights and free exercise of religion rights by “moving them from the barricaded roadway to the sidewalk and placing a beeping utility cart in front of them.”

James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate Professor in the School of Sport, Recreation and Tourism Management at George Mason University. Webpage with link to law review articles archive (1982 to present).