As organizers here in Denver make final preparations for PrideFest this weekend, we report on a case stemming from a similar event scheduled in Syracuse, New York.
A plaintiff who had been prevented from protesting Pride Week in Syracuse in both 2014 and 2015 filed a motion in federal court seeking a preliminary injunction to enjoin the city from restricting the plaintiff’s ability to demonstrate at the upcoming Pride Week festival. In 2014 and 2015, the plaintiff positioned himself on the sidewalk immediately adjacent to the festival’s entrance with a banner and a voice amplifier, and attempted to “explain [his] beliefs to those nearby.” However, each year, city police officers approached the plaintiff and asked him to move across the street from the festival entrance. According to video footage taken by the plaintiff, the police officer who approached the plaintiff in 2014 justified his request by stating that the festival organizers’ permit entitled them to exclusive use of the sidewalk area immediately adjacent to the festival entrance. The police officer who approached the plaintiff in 2015 explained that the festival organizers were entitled to a 40-foot buffer on the area surrounding the festival entrance.
In both 2014 and 2015, the plaintiff agreed to relocate across the street; however, in each instance, left shortly thereafter when he determined the location was too far from the festival to be able to engage with attendees. In anticipation of events to be held in 2016, the plaintiff requested a preliminary injunction, claiming that being forced to move across the street constituted a violation of his First Amendment rights.
The court granted the plaintiff’s motion. Because the sidewalk constitutes a public forum, the city’s actions were subject to heightened review. In a public forum, restrictions on speech are permissible as long as the restrictions are narrowly tailored, content neutral and permit alternative channels of communication. The court found that although the buffer zone policy served legitimate government interests, it was not narrowly tailored. Accordingly, the plaintiff was likely to succeed on the merits of his case. Determining that the other preliminary injunction factors were satisfied, the court granted the preliminary injunction.
In its analysis, the court relied heavily on McCullen v. Coakley, a Supreme Court case that considered the constitutionality of buffer zones. In McCullen, the Supreme Court held that a Massachusetts statute establishing a 35-foot buffer zone around reproductive health clinics violated the First Amendment. The buffer zone, which could only be entered into by people entering the clinics for treatment, placed “serious burdens” on the speech of people who sought to engage women entering the clinics in one-on-one conversations in hopes of dissuading the women from getting abortions. The Court found that the buffer zone “compromise[d] petitioners’ ability to initiate the close, personal conversations that they view as essential to ‘sidewalk counseling.’” Based on the similarity of underlying facts, the court in the plaintiff’s case found no reason to deviate from the holding in McCullen.