(CN) - A protester arrested outside a Ringling Brothers Barnum and Bailey Circus failed to challenge leafleting restrictions in Baltimore, Md., the 4th Circuit ruled.
Feld Entertainment leases the First Mariner Arena, a large sports and entertainment venue located in downtown in Baltimore, from the city every year, typically in late March.
For years, Baltimore did not regulate the demonstrators who hold signs, chant and leaflet around the arena's perimeter, but a lawfully permitted protest by People for the Ethical Treatment of Animals marked a turning point in March 2003.
Though PETA's permit covered the parking of a "media truck" near the area that year, the truck seriously obstructed the flow of traffic. As bus passengers and circus patrons overflowed from the sidewalk into the street, police and transit officers converged to disperse the crowd.
When police asked for guidance on constitutionally permissible ways to manage future disruptions, the mayor sent an email that designated three protest areas outside the area.
The policy also directed officers to issue at least two verbal warnings to individuals violating the policy prior to making any arrest for failure to obey a lawful order.
Aaron Ross, an animal welfare activist arrested in March 2008 and March 2009 for leafleting outside the designated areas, in turn filed suit against Baltimore Mayor Wayne Early, the city council and the city police department.
With Baltimore insisting that it followed the policy to the letter, U.S. District Judge J. Frederick Motz granted summary judgment to the arresting officer involved in both arrests.
The parties then stipulated ahead of trial on the remaining issues that the policy was generally applicable and not targeted toward restricting specific protesters.
Motz then ruled for the city and the police department, but Ross challenged the policy on appeal as an unreasonable time, place and manner restriction on speech. He also disputed that the police officer had qualified immunity.
A divided three-judge panel of the 4th Circuit nevertheless affirmed last week.
"The policy directs protestors to stand in designated areas located mere feet from their intended audience, within full view and earshot of both passersby and circus attendees, and imposes no restriction on the channels of expression employed therein," Judge Stephanie Thacker wrote for the court in Richmond, Va. "We readily conclude this narrow degree of geographical separation does not hinder the protestors' ability to disseminate their message."
Ross failed to show that, despite apparent proximity to the passersby he wanted to reach, the restriction to a designated protest area unconstitutionally restricted his ability to distribute leaflets.
"Our inquiry ... does not rise or fall on the efficacy of a single medium of expression," Thacker wrote. "The First Amendment affords no special protection to a speaker's 'favored or most cost-effective mode of communication'"
The court upheld the policy as a permissible time, place, and manner restriction on speech since its "limitation on speech is content neutral, narrowly tailored to achieve a substantial government interest, and allows ample alternative channels of communication."
Ross meanwhile failed to show that police officer did not deserve summary judgment since he could not show he was arrested without cause.
In his dissent Judge James A. Wynn Jr. said he was extremely concerned that the city's policy "constituted nothing more than an e-mail - copied, pasted, and resent with minor modifications year after year - from Baltimore's city attorney to about a dozen members of the police department and city staff."
"It is axiomatic that our most basic notions of due process are jeopardized when speech restrictions are developed secretly in the back offices of city hall rather than publicly in the council chambers," Wynn wrote. "It seems plausible to me that today's decision will encourage local governments to avoid the time-consuming and politically costly exercise of adopting speech-restrictive ordinances in favor of developing speech-restrictive 'Policies' at the staff level."