Circus Protester’s Challenge to Leafleting Restrictions Proceed

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By Bernie Pazanowski

A First Amendment challenge by a circus protester to Baltimore’s leafleting restrictions should proceed despite circuit precedent upholding them, the U.S. Court of Appeals for the Fourth Circuit said Oct. 13 ( Lucero v. Early , 2017 BL 367555, 4th Cir., No. 16-1767, 10/13/17 ).

Intervening U.S. Supreme Court case law has altered the Free Speech landscape. Consequently, the district court erred by dismissing the suit, the court said in an opinion by Judge Stephanie D. Thacker.

Kenneth Lucero was arrested for violating Baltimore leafleting restrictions while protesting the Ringling Brother and Barnum & Bailey Circus. The restrictions, contained in a city protocol, were adopted in 2003 after protesters handing out leaflets about the circus’s treatment of its animals disrupted traffic outside the Mariner Arena.

The protocol stipulates where leaflets can be handed out near the arena and Lucero argued its requirements impeded his ability to effectively protest because he wasn’t within arms’ length or conversational distance from circus attendees.

The district court noted Ross v. Early was a nearly identical case and upheld the constitutionality of the restrictions.

But Ross is distinguishable because the parties stipulated to the proper level of scrutiny to apply and scrutiny is still disputed here, the appellate court said.

The Supreme Court has also handed down McCullen v. Coakley and Reed v. Town of Gilbert since Ross, the court said.

The McCullen court concluded that a buffer zone that precluded leafleting within a certain radius of abortion clinics was content neutral even though it applied only to “reproductive health care” facilities.

Reed held content neutrality should be analyzed by looking at whether the law on its face draws a distinction based on the speakers message and then whether it was adopted because the government disagreed with the message the speech conveyed.

The district court must therefore, in Lucero’s suit, look at whether the protocol required officers to check a leaflet’s content before enforcement and whether the protocol was adopted because of a disagreement with Lucero’s message, the court said.

Judges Pamela A. Harris and Norman K. Moon, sitting by designation, joined the opinion.

Law Office of Sean R. Day represented Lucero. Baltimore City Department of Law represented the city.

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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