THE BALLOON MAN

Judge Puts Activists' Circus Protest on Ice

Thursday, December 29, 2011

from: courthousenews.com

By REUBEN KRAMER

PHILADELPHIA (CN) - The operator of the Wells Fargo Center can prevent protesters from demonstrating in a nearby parking lot, a federal judge ruled, dashing the dreams of an activist who wanted to protest the circus by donning an elephant suit. Marianne Bessey and Edward Coffin say they "object to the cruel mistreatment of animals by the Ringling Bros. Circus" and want to set up tables with televisions and literature to protest that alleged mistreatment when the circus's parent company, Feld Entertainment, hosts events at the Wells Fargo Center in Philadelphia. With Feld's Disney on Ice slated to take the stage in December, Bessey and Coffin filed suit against Spectrum Arena LP (SALP), which operates the stadium. The activists sought an injunction to overcome Spectrum's rules against unauthorized leafleting and picketing at the center. In addition to leafleting and holding banners, at least one of the plaintiffs "may dress as an elephant or other circus animal," according to the November complaint. The lawsuit notes that Philadelphia owns the center and the underlying property, which Spectrum merely subleases from the Philadelphia Authority for Industrial Development, a municipal entity charged with managing city-owned property. Philadelphia benefits from the amusement tax levied on each ticket Spectrum sells, and its revenues pay for city property maintenance, the protesters argued. They also claimed that the city exempts Spectrum from property taxes because it leases public property for public purposes. U.S. District Judge Petrese Tucker refused to issue the injunction last week. "SALP is not a state actor," Tucker wrote. "Plaintiffs are not likely to succeed on their claim that SALP's ban violates plaintiffs' First Amendment rights." The 11-page decision acknowledges that Spectrum sublets city-owned property pursuant to a 29-year-lease; that roughly $25 million in city and state funds went towards the center's $220 million price tag; and that the lease comes with a host of city-dictated stipulations about how Spectrum should run the arena. But those facts are insufficient to prove that Spectrum operates the center as a state actor, the judge found. These facts, "neither standing alone, nor when considered in total, create a symbiotic relationship between the city and SALP, or pervasively entwine the government in the operation of the center," Tucker wrote. "First Amendment rights, like most federal constitutional rights, are secured only against infringement by state action," she added. "While professional sports, concerts and other entertainment events enhance the cultural and civic life of a community, providing these services is not the exclusive province of the state and, in fact, is not a governmental function," the judge wrote. Even if Spectrum were considered a state actor, Tucker said the arena is not a public forum. "The Third Circuit has made clear that sports arenas are not public forums and, therefore, content neutral bans of protest activities are appropriate even at government owned facilities," the opinion states. "Protesting inside the parking lot and sidewalks of the center would disrupt the follow [sic] of traffic and possibly lead to confusion and confrontation amongst the Patrons," Tucker wrote. Spectrum's ban is a content-neutral, "legitimate means to preserve the intended use of the center," according to the court, which added that the policy also survives state constitutional scrutiny.