PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 18-2380

___________

SILVIE POMICTER; 

LAST CHANCE FOR ANIMALS

v.

LUZERNE COUNTY CONVENTION CENTER 

AUTHORITY; SMG,

 Appellants

_______________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 3-16-cv-00632)

District Judge: Honorable Robert D. Mariani

______________

Argued: April 16, 2019

Before: AMBRO, GREENAWAY, JR., and SCIRICA, 

Circuit Judges.

(Filed: September 23, 2019)
2

Donald H. Brobst

Thomas J. Campenni [ARGUED]

Robert L. Gawlas

Rosenn Jenkins & Greenwald

15 South Franklin Street

Wilkes-Barre, PA 18711

 Counsel for Appellants

Alexander Bilus [ARGUED]

Amy S. Kline

Meghan J. Talbot

Saul Ewing Arnstein & Lehr

1500 Market Street

Centre Square East, 38th Floor

Philadelphia, PA 19102

Mary Catherine Roper

American Civil Liberties Union of Philadelphia

P.O. Box 60173

Philadelphia, PA 19106

Vic Walczak

American Civil Liberties Union of Philadelphia

247 Fort Pitt Boulevard

Pittsburgh, PA 15222

 Counsel for Appellees

_________________

OPINION OF THE COURT

_________________
3

SCIRICA, Circuit Judge.

This appeal involves government restrictions on speech 

at a publicly owned arena in Wilkes-Barre, Pennsylvania. The 

primary issue we must resolve is whether the government’s 

policy sequestering all protest activity to enclosures by each 

entrance of the Mohegan Sun Arena is facially unconstitutional 

under the First Amendment. In a public forum—a government 

space dedicated to the free exchange of ideas—the governing 

authority may not confine speech in this way without showing 

its restrictions are narrowly tailored to serve a significant 

interest. But the animal rights activists challenging the policy 

have conceded that the Arena’s concourse is a nonpublic 

forum, a space which the government may reasonably reserve 

for its intended purpose. As the concourse’s function is to 

facilitate movement of pedestrians into and out of the Arena, 

we cannot find unreasonable a policy sensibly designed to 

minimize interference with that flow. Accordingly, we will 

reverse the District Court’s order because the policy is 

constitutional. But because the government has not met its 

burden to show the other two policies at issue—bans on 

profanity and voice amplification—are reasonable, we will 

affirm the court’s injunction of those policies.

I.

A.

Defendant Luzerne County Convention Center 

Authority owns the Mohegan Sun Arena, a large event space 

in Wilkes-Barre, Pennsylvania. The Arena—which holds up to 
4

10,000 people—hosts athletic and other commercial 

entertainment events, including national touring acts like the 

circus, concerts, Disney on Ice, and World Wrestling 

Entertainment. Though the Arena is publicly owned, it 

operates as a business that must earn enough to pay its 

expenses. The Authority contracts with Defendant SMG to 

manage the Arena’s day-to-day operations.

The Arena building is set back from the public road and 

surrounded by several large parking lots. Patrons attending 

events at the Arena drive from the public road onto an access 

road, park in one of the lots, and then walk to the Arena’s 

entrances. This is the only way to access the Arena, as it is 

separated from the public road by a grass median and fence. A 

large concrete concourse connects the parking lots to the 

Arena. The concourse houses two entrances for the Arena’s 

patrons, termed the “East Gate” and “West Gate,” and includes 

a pathway between the two gates.1 The concourse is generally 

open to the public but primarily used by patrons attending 

Arena events.

Under the Arena’s protest policy, “[a]ll persons are 

welcome to express their views” at the Arena. App. 400. The 

Arena’s policy imposes several limits on protest activity, three 

of which are at issue here. First, protesters must stand within 

“designated area[s]” on the concourse and “[h]andouts can 

only be distributed from within” those areas (the “location 

condition”). Id. The designated areas are two “rectangular 

 

1 The part of the concourse in front of the East Gate 

measures 18,746 square feet, the area in front of the West Gate 

measures 10,560 square feet, and the sidewalk connecting the 

two is 321 feet long and 30 feet wide.
5

enclosure[s] constructed from bike racks” that are 500 to 700 

square feet and set up on the concourse next to the East and 

West Gates. Pomicter v. Luzerne Cty. Convention Ctr. Auth., 

322 F. Supp. 3d 558, 565 (M.D. Pa. 2018) (hereinafter 

Pomicter II). Second, the policy bans protesters from using 

profanity and “promotional verbiage suggesting vulgarity or 

profanity” (the “profanity ban”). App. 400. Finally, the protest 

policy prohibits any artificial voice amplification (the 

“amplification ban”). Id.

B.

In 2016, Silvie Pomicter and Last Chance for Animals 

(LCA) sued the Authority and SMG, contending the Arena’s 

protest policy infringes their free speech rights. In a facial 

challenge, they allege the policy violates the First Amendment 

of the United States Constitution and Article I of the 

Pennsylvania Constitution.2 Pomicter—who, along with LCA, 

 

2 Plaintiffs bring their federal constitutional claims 

pursuant to 42 U.S.C. § 1983, which “provides a remedy for 

deprivations of rights secured by the Constitution and laws of 

the United States when the deprivation takes place under color 

of any statute, ordinance, regulation, custom, or usage, of any 

State or Territory.” Pomicter v. Luzerne Cty. Convention Ctr. 

Auth., No. 16-632, 2016 WL 1706165, at *4 (M.D. Pa. Apr. 

27, 2016) (hereinafter Pomicter I) (quoting Lugar v. 

Edmondson Oil Co., 457 U.S. 922, 924 (1982)). In ruling on 

Plaintiffs’ motion for a preliminary injunction, the trial court 

found that the Authority was “a public governmental entity 

acting under color of state law” and that SMG, though 

nominally a private entity, was a “‘willful participant in joint 

activity’ with the Authority and thus qualifie[d] as a state 
6

opposes the use of animals by circuses—had protested at past 

circus performances at the Arena, and she alleged her 

confinement to the enclosures limited her ability to 

communicate with patrons. Plaintiffs sought declaratory and 

injunctive relief prohibiting Defendants from enforcing the 

location condition, the profanity ban, and the amplification 

ban.

Immediately after filing their complaint, Plaintiffs 

moved for a preliminary injunction challenging the location 

condition only. They planned to protest at upcoming circus 

performances at the Arena and sought to protest and distribute 

leaflets outside the designated areas. After holding an 

evidentiary hearing, the District Court granted Plaintiffs’ 

motion in part, finding the location condition “unreasonable ‘in 

light of the characteristic nature and function’ of the Arena.” 

Pomicter I, 2016 WL 1706165, at *5 (quoting United States v. 

Kokinda, 497 U.S. 720, 732 (1990)). It crafted a less restrictive 

policy in its injunction. The injunction allowed up to twenty 

protesters to distribute literature and talk to patrons within a 

circumscribed section of the concourse,3 but protesters could 

not approach anyone in line or otherwise “block the ingress or 

egress of patrons.” App. 107. 

 

actor.” Id. (quoting Lugar, 457 U.S. at 941). Defendants do not 

challenge these correct gateway determinations on appeal.

3 The Court noted the concourse comprises two distinct 

sections. The “entry bridge”—the 37 feet surrounding each

entrance gate—is a light concrete, and the 60 feet between the 

entry bridge and the parking lot is a darker shade. Pomicter I, 

2016 WL 1706165, at *2. The injunction did not permit 

protesting in the entry bridge or the first six feet of the dark 

concrete from the parking lots.
7

Plaintiffs protested under the terms of the preliminary 

injunction at circus performances at the Arena in 2016 and in 

2017. The Court later held a bench trial. Pomicter testified that,

during the circus protest in 2016, twelve protesters left the 

designated areas to protest on the concourse. They were able 

to distribute far more literature than the protesters in the 

designated areas, who attracted little attention from patrons. 

Plaintiffs also introduced videos of the protest, which showed 

mainly nonconfrontational interactions between patrons and 

protesters, with no abnormal congestion created on the 

concourse.4

While Plaintiffs focused on the circus protests under the 

terms of the injunction, Defendants emphasized that the policy 

was designed to deal with the range of potential groups that 

may protest at the Arena. Brian Sipe, the Arena’s General 

Manager, testified that, while Plaintiffs were not unruly 

protesters, the Arena expected other groups may be less 

cooperative. Because the Arena may not be able to effectively 

manage protesters outside the designated areas, the location 

condition minimizes congestion and security risks, and allows 

law enforcement to more easily control crowds at the Arena.

The District Court ruled in favor of Plaintiffs and found 

all three restrictions violated the First Amendment.5 As to the 

 

4 The videos were only taken before Arena events as 

patrons were entering; there were no videos showing traffic 

flow as patrons exited the Arena.

5

In addition, because “[t]he corresponding Pennsylvania 

constitutional provision ‘provides protection for freedom of 

expression that is broader than the federal constitutional 
8

location condition and amplification ban, the Court discounted 

Defendants’ proffered explanations for the policies, finding 

them speculative and unreasonable. See Pomicter II, 322 F. 

Supp. 3d at 571. As to the profanity ban, the Court held it 

“unreasonably singles out First Amendment activity by 

imposing” the ban “on protesters alone.” Id. at 577. It entered 

judgment for Plaintiffs and enjoined Defendants from 

enforcing the three restrictions, though it noted more carefully 

crafted restrictions may be permissible.6 Defendants now 

appeal.7

 

guarantee[,]’” the court held the restrictions were also 

“unreasonable under Pennsylvania law.” Pomicter II, 322 F. 

Supp. 3d at 567 (quoting Pap’s A.M. v. City of Erie, 812 A.2d 

591, 605 (Pa. 2002)) (second alteration in original).

6 Plaintiffs moved to amend the judgment because the 

Court’s opinion and injunction did not specifically address 

whether protesters could carry signs outside the enclosures. 

The Court issued a supplemental opinion and order holding 

Defendants could not confine protesters with signs to the 

designated areas. According to the Court, “the reasoning of 

permitting leafletting activity applies with equal force to the 

act of carrying signs and picketing.” Pomicter v. Luzerne Cty. 

Convention Ctr. Auth., No. 16-632, 2018 WL 2325407, at *4 

(M.D. Pa. May 22, 2018).

7 The District Court had jurisdiction under 28 U.S.C. §§ 

1331 and 1367. We have jurisdiction under 28 U.S.C. § 1291. 

On appeal from a bench trial, our Court “reviews a district 

court’s findings of fact for clear error and its conclusions of 

law de novo.” VICI Racing, LLC v. T-Mobile USA, Inc., 763 

F.3d 273, 282–83 (3d Cir. 2014). We review an order granting 

injunctive relief for abuse of discretion. Alpha Painting & 
9

II.

The First Amendment, applied to state and local 

governments through the Fourteenth Amendment, prohibits 

laws and regulations “abridging the freedom of speech.” U.S. 

Const. amend. I. As noted, the Arena’s protest policy confines 

all protest activity to the designated enclosures, in addition to 

banning profanity and artificial voice amplification. Our 

precedent is clear that these restrictions implicate protected 

speech. See Brown v. City of Pittsburgh, 586 F.3d 263, 269 (3d 

Cir. 2009) (“[L]eafletting, sign displays, and oral 

communication . . . are indisputably protected forms of 

expression.”) (internal quotation marks omitted); Startzell v. 

City of Philadelphia, 533 F.3d 183, 199 n.10 (3d Cir. 2008) 

(“[A]mplified speech, such as through the use of bullhorns, is 

protected expression.”).

Protected speech is not immune from regulation. See 

Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 

788, 799 (1985) (“Even protected speech is not equally 

permissible in all places and at all times.”). The forum in which 

the speech takes place governs what regulation is permissible, 

and, in a nonpublic forum like the concourse here, protected 

speech is subject to reasonable regulations.

A.

In assessing the Authority’s restriction on protected 

speech, we are guided by the forum analysis, which serves “as 

 

Constr. Co. v. Del. River Port Auth. of Pa. & N.J., 853 F.3d 

671, 683 (3d Cir. 2017).
10

a means of determining when the Government’s interest in 

limiting the use of its property to its intended purpose 

outweighs the interest of those wishing to use the property for 

other purposes.” Kokinda, 497 U.S. at 726 (quoting Cornelius, 

473 U.S. at 800). Under this framework, “the extent to which 

the Government can control access depends on the nature of 

the relevant forum.” Id. (quoting Cornelius, 473 U.S. at 800).

On one side of the spectrum is a public forum, property that 

“has been traditionally open to the public for expressive 

activity, such as public streets and parks.” Id. In these spaces,

“the rights of the state to limit expressive activity are sharply 

circumscribed.” United States v. Marcavage, 609 F.3d 264, 

279 (3d Cir. 2010) (quoting Perry Educ. Ass’n v. Perry Local 

Educators’ Ass’n, 460 U.S. 37, 45 (1983)). Time, place, and 

manner restrictions must be content neutral and narrowly 

tailored, while content-based restrictions must meet the even 

higher bar of being the least restrictive means of achieving a 

compelling government interest. Id. In designated public 

forums—property “which the state has opened for use by the 

public as a place for expressive activity”—restrictions on 

speech are examined the same way. Perry Educ. Ass’n, 460 

U.S. at 45.8

In nonpublic forums—government property that is not 

dedicated to First Amendment activity—the government has

more “flexibility to craft rules limiting speech.” Minn. Voters 

 

8 The Supreme Court has made clear that “[t]he 

government does not create a public forum by inaction or by 

permitting limited discourse, but only by intentionally opening 

a nontraditional forum for public discourse.” Cornelius, 473 

U.S. at 802 (citation omitted).
11

All. v. Mansky, 138 S. Ct. 1876, 1885 (2018). Although it “does 

not enjoy absolute freedom from First Amendment 

constraints,” Kokinda, 497 U.S. at 725, “the government, ‘no 

less than a private owner of property,’ retains the ‘power to 

preserve the property under its control for the use to which it is 

lawfully dedicated,’” Minn. Voters All., 138 S. Ct. at 1885

(quoting Adderley v. Florida, 385 U.S. 39, 47 (1966)). This is 

because “[n]othing in the Constitution requires the 

Government freely to grant access to all who wish to exercise 

their right to free speech on every type of Government property 

without regard to the nature of the property or to the disruption 

that might be caused by the speaker’s activities.” Id. (quoting

Cornelius, 473 U.S. at 799–800). Rather, the government may 

reserve a nonpublic forum “for its intended purposes, 

communicative or otherwise, as long as the regulation on 

speech is reasonable and not an effort to suppress expression 

merely because public officials oppose the speaker’s view.” Id.

(quoting Perry Educ. Ass’n, 460 U.S. at 46). In a nonpublic 

forum, speech restrictions need only be reasonable, “a much 

more limited review” than applied in public forums. Int’l Soc’y 

for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 679

(1992).

Here, the relevant forum, or the “specific public 

property that [Plaintiffs] seek[] to access,” is the concourse 

outside the Arena. NAACP v. City of Philadelphia, 834 F.3d 

435, 442 (3d Cir. 2016). Plaintiffs concede in this suit that the 

concourse is a nonpublic forum. “The question whether a 

particular [property] is a public or a nonpublic forum is highly

fact-specific and no one factor is dispositive.” Marcavage, 609 

F.3d at 275. In the absence of evidence and argument to the 

contrary, we accept Plaintiffs’ concession that the concourse is 

being used at present as a nonpublic forum. Cf. United States 
12

v. Bjerke, 796 F.2d 643, 649 (3d Cir. 1986) (holding walkways 

“not dedicated to serve the traditional functions of streets or 

parks, but rather for the particular function of accommodating 

post office patrons on official business,” were a nonpublic 

forum); Int’l Soc’y for Krishna Consciousness, Inc. v. N.J.

Sports & Exposition Auth., 691 F.2d 155, 161 (3d Cir. 1982)

(reasoning that “commercial” nature of sports complex made it 

a nonpublic forum). We caution, however, that a public arena 

and its entranceway may not always be treated this way. If 

there was evidence showing, for example, that the concourse 

was “used for purposes of assembly, communicating thoughts 

between citizens, and discussing public questions,” our 

analysis would be different. Perry Educ. Ass’n, 460 U.S. at 45

(quoting Hague v. CIO, 307 U.S. 496, 515 (1939)); cf. Paulsen 

v. Cty. of Nassau, 925 F.2d 65, 70 (2d Cir. 1991).

9

As noted, speech restrictions in nonpublic forums must 

be reasonable in light of the purpose served by the forum and 

 

9 We also emphasize that Plaintiffs bring a facial 

challenge, where we must assess whether the policy is 

“unconstitutional in all of its applications.” Wash. State 

Grange v. Wash. State Republican Party, 552 U.S. 442, 449 

(2008). Plaintiffs’ challenge here is limited to the Arena’s use 

as a nonpublic forum. If the speech restrictions pass muster 

under the reasonableness analysis, they cannot be facially

invalid. But that is not to say that the restrictions are 

constitutional in every application. Though Plaintiffs don’t 

raise the point, the District Court noted that the Arena has 

hosted political events and rallies in the past. If an as-applied 

challenge were raised in this context, both our reasoning and 

conclusion could be different. But as noted, Plaintiffs conceded 

this is a nonpublic forum.
13

viewpoint neutral. There is no claim that the Arena’s protest 

policy discriminates based on viewpoint or that it is enforced 

in a discriminatory way. Accordingly, we must examine 

whether the policy is “reasonable in light of the purpose served 

by the forum.” Cornelius, 473 U.S. at 806 (citation omitted).

B.

Because of the importance of the interests protected by 

the First Amendment, the government bears the burden to 

show its speech restrictions are reasonable. See NAACP, 834 

F.3d at 443. But unlike in public forums, the government’s 

“burden to establish reasonableness” in nonpublic forums “is a 

light one.” Id. at 449. Since the “flexibility” afforded to the 

government in these settings is justified by the government’s 

ability to preserve property for its intended uses, Minn. Voters 

All., 138 S. Ct. at 1885, the government must provide a 

legitimate explanation for the restriction in “light of the 

purpose of the forum and all the surrounding circumstances,” 

Cornelius, 473 U.S. at 809. To be “legitimate,” the 

government’s explanation must be supported by either record 

evidence or “commonsense inferences” based on the record. 

NAACP, 834 F.3d at 445. Once this requirement is met, though, 

we give the government latitude to devise appropriate 

regulations. “Even if more narrowly tailored regulations could 

be promulgated,” the government “is only required to adopt 

reasonable regulations, not ‘the most reasonable or the only 

reasonable’ regulation possible.” Kokinda, 497 U.S. at 735–36

(quoting Cornelius, 473 U.S. at 808).

For instance, in a case similar to the one now before us, 

we reviewed a policy prohibiting solicitation and leafletting at 

the Meadowlands sports complex. See N.J. Sports, 691 F.2d at
14

161. We rejected a challenge by plaintiffs who sought 

simultaneously to solicit donations and distribute literature at 

the race track and arena.10 Among other justifications for the 

policy, the government explained solicitation “would compete 

with the Authority for its patrons’ money and disrupt the 

normal activities of the complex.” Id. Having found that the 

Meadowlands was a commercial venture expected to generate 

revenue, we determined “it is not unreasonable for the 

Authority to prohibit outside groups from engaging in 

activities which are counterproductive to its objectives.” Id.

Although it was certainly possible to conceive of more limited 

or carefully tailored restrictions than an absolute ban on 

solicitation—such as restrictions prescribing the time or place 

when solicitation is permitted—we did not require the 

government to take such steps. Because the restriction was 

reasonably explained in light of the purpose of the forum, it 

was constitutional.

The flexibility of the reasonableness standard also 

empowers the government to act prophylactically. In Perry 

Education Ass’n v. Perry Local Educators’ Ass’n, for instance, 

the Supreme Court considered a school district policy that 

allowed the bargaining representative teacher’s union—but not 

its rival—access to an internal mail system. See 460 U.S. at 40. 

Stressing the flexibility afforded to the government when 

dealing with a nonpublic forum, the Court held the policy “may 

reasonably be considered a means of insuring labor-peace 

within the schools.” Id. at 52. Even though there was “no 

 

10 Although the cases are similar, the result in New Jersey 

Sports does not dictate our outcome here. “Reasonableness is 

a case-specific inquiry, meaning that previous examples are of 

limited usefulness.” NAACP, 834 F.3d at 448.
15

showing in the record of past disturbances” or “evidence that 

future disturbance would be likely,” there is no “require[ment] 

that such proof be present to justify the denial of access to a 

non-public forum on grounds that the proposed use may disrupt 

the property’s intended function.” Id. at 52 n.12. As the Court 

has emphasized, “the Government need not wait until havoc is 

wreaked to restrict access to a nonpublic forum.” Cornelius, 

473 U.S. at 810.

“[A]lthough the government does not need to prove 

that a particular use will actually disrupt the ‘intended 

function’ of its property,” in NAACP we reiterated that the 

record must contain enough “information from which we can 

draw an inference that would support” the speech restriction. 

834 F.3d at 445 (quoting Lee, 505 U.S. at 691 (O’Connor, J., 

concurring)). There, we held the Philadelphia Airport’s ban on 

noncommercial content in its advertising space was not 

reasonable because the city’s explanations were belied by the 

record. The city first contended the policy was intended to 

promote revenue maximization. We concluded this was not a 

legitimate explanation because the record lacked any support 

to connect the ban to this goal; the city’s representative testified 

the ban was not intended to promote revenue and instead cost 

the city money. Id. at 445–46. Commonsense inferences could 

not fill the gap, as we would not accept a justification 

disclaimed in the city’s testimony. Id. at 446. The city next 

sought to justify the ban as a way to avoid controversy, 

pointing to testimony about efforts to make the Airport a 

pleasant place for travelers. Id. at 446–47. But that explanation 

was inconsistent with the record evidence relating to the 

overall nature of the forum, which showed an “onslaught of 

noncommercial content” throughout the Airport. Id. at 447. We 

refused to credit an “inference that [the Airport] would devote 
16

its advertising space to a purpose to which the rest of the 

Airport does not subscribe.” Id.

In sum, though the government faces a “relatively low 

bar” to show reasonableness in a nonpublic forum, its speech 

restrictions are still subject to limitation: it may not offer 

justifications unsupported by the record. Id. at 443. The record 

must allow us to “grasp the purpose” of the forum and, 

critically, understand how the speech activity at issue may 

disrupt that purpose. Id. at 445; see also New England Reg’l 

Council of Carpenters v. Kinton, 284 F.3d 9, 20 (1st Cir. 2002) 

(describing reasonableness review as a “fact-intensive” inquiry 

considering “the uses to which the forum typically is put,” the 

“risks associated with the speech activity,” and the “proffered 

rationale”); Hawkins v. City & Cty. of Denver, 170 F.3d 1281, 

1290 (10th Cir. 1999) (same). If the restrictions are reasonably 

explained, accord with the evidence or commonsense, and are 

connected to the purpose of the forum, we are constrained to 

be lenient in our review.

III.

In NAACP, we organized the reasonableness analysis 

into two steps, which will guide our analysis here. “First, given 

that reasonableness ‘must be assessed in the light of the 

purpose of the forum and all the surrounding 

circumstances,’” we consider the purpose of the forum. 

NAACP, 834 F.3d at 445 (quoting Cornelius, 473 U.S. at 809). 

Second, we assess whether Defendants have provided a 

legitimate explanation related to the purpose of the forum and 

supported by “evidence or commonsense inferences” for the 

three restrictions at issue here. Id.
17

A.

We first consider the purpose of the forum. As noted, 

the relevant forum, or the specific space Plaintiffs seek to 

access, is the concourse outside the Arena. Record evidence or 

commonsense inferences must show “the purpose to which the 

[government] has devoted the forum.” Id. Though we focus on 

the concourse, this “does not mean . . . that [we] will ignore the 

special nature and function” of the Arena—which, as we’ve 

described, is a large commercial event space—“in evaluating 

the limits that may be imposed” on protest activity on the 

concourse. Cornelius, 473 U.S. at 801–02; see also NAACP, 

834 F.3d at 447. 

Defendants contend, and the record confirms, that the 

concourse is dedicated to a single purpose: providing for the 

passage of patrons into and out of the Arena. Customers 

attending events at the Arena park in the parking lots and walk 

to the concourse, which provides a pathway for them to enter 

and exit through the Arena’s two gates. Sipe testified that the 

concourse was constructed so that “patrons, after they’re done 

parking their car, can enter into the facility.” App. 281. He 

confirmed that “thousands of people enter[] and exit[] the 

building in a very short period of time” before and after events, 

and the concourse is the only way they may do so. App. 121.

And because the concourse is next to the parking lot, it is 

important that the areas immediately abutting the lot remain 

clear to prevent “backing people up into the traffic area.” App. 

478.

B.
18

With the forum’s purpose and circumstances in mind, 

the second step is to assess whether Defendants have 

“provide[d] a legitimate explanation for” each of the three 

challenged restrictions. NAACP, 834 F.3d at 445. As we have 

explained, record evidence or commonsense inferences “must 

provide a way of tying the limitation on speech to the forum’s 

purpose.” Id. Accordingly, we will examine the record 

evidence about the three restrictions and assess each restriction 

“in light of the characteristic nature and function” of the forum. 

Kokinda, 497 U.S. at 732 (quoting Heffron v. Int’l Soc’y for 

Krishna Consciousness, Inc., 452 U.S. 640, 651 (1981)).

1.

We begin with the location condition, which requires 

protesters to stand within designated areas on the concourse 

next to the Arena’s two entrance gates. According to 

Defendants, the primary purpose of that restriction is to 

maintain the orderly and safe movement of patrons into and out 

of the Arena. Sipe testified that allowing protesters to freely 

interact with patrons could impede traffic flow as patrons enter 

and exit the Arena. In addition, face-to-face interactions could 

create security risks if a patron disagreed with the protester’s 

message. Finally, he testified that enclosing the protesters to 

the designated areas gives security officers “an easier time with 

crowd control.” App. 287. He explained it would be difficult 

to monitor the protesters if they were allowed free access to the 

concourse, and the Authority may need to hire additional 

guards to ensure protesters are adhering to the policy and to 

prevent altercations.11

 

11 Sipe testified that, during the circus protests that took 

place under the terms of the preliminary injunction, he hired 
19

In light of this testimony—as well as commonsense 

inferences about the need to maintain crowd control on the 

concourse—we conclude the location condition is reasonable. 

In assessing Defendants’ interests, our focus is not only “the 

disorder that would result from granting an exemption solely 

to [Plaintiffs].” Lee, 505 U.S. at 685 (quoting Heffron, 452 U.S. 

at 652). We must also consider the potentially “much larger 

threat to [Defendants’] interest in crowd control if all other 

[protest groups] could likewise move freely.” Id. (quoting 

Heffron, 452 U.S. at 653). Here, especially considering the 

concourse’s limited purpose of facilitating the movement of 

Arena patrons between the parking lots and gates, it is sensible 

for the Arena to maintain a policy that minimizes congestion 

and interference with the pedestrian flow. Cf. N.J. Sports, 691 

F.2d at 162 (concluding that “maintaining [pedestrian] traffic 

and crowd control” justified solicitation ban, as solicitation 

“impede[s]” the “necessary free movement” of thousands of 

patrons “mov[ing] rapidly . . . through the parking lot and 

stadium”) (citation omitted). The Arena’s related security and 

safety concerns are also legitimate. It is not unreasonable to 

anticipate disruption if protesters were allowed throughout the 

concourse, particularly if a patron is confronted face-to-face by 

a protester she or he finds aggressive or disagreeable.12 For 

 

three additional security officers to assist with monitoring the 

protesters.

12 Indeed, the video evidence presented at trial showed one 

minor confrontation between a patron and a protester at a 2016 

circus performance. Pomicter II, 322 F. Supp. 3d at 565. The 

patron reacted negatively to the protesters’ message and 

“raised his middle finger to [a] protestor.” Id. The protesters 

ignored the incident, and the patron moved along. Pomicter 
20

these reasons, we conclude the location condition is 

reasonable.

Plaintiffs’ counterarguments are unavailing in a 

nonpublic forum, where our review is limited to 

reasonableness. Plaintiffs contend that “the availability . . . of 

other strategies” for addressing crowd control and safety

undermines Defendants’ explanation. Appellee’s Br. 31. While 

allowing up to 20 protesters access to a limited area of the 

concourse, as the District Court did, or creating buffer zones, 

as Plaintiffs suggest, may be less restrictive, Defendants are not 

required to narrowly tailor speech restrictions in a nonpublic 

forum. Moreover, Defendants’ legitimate concerns about the 

administrability of these more narrowly tailored restrictions 

further support the reasonableness of the location condition. 

Cf. Cornelius, 473 U.S. at 809 (approving speech restriction in 

part “because it would be administratively unmanageable if 

access could not be curtailed in a reasonable manner”). And 

although Plaintiffs stress that there is no evidence about past 

congestion or security problems on the concourse, Defendants 

do not need to prove that picketing and leafletting would 

“actually disrupt the intended function of its property.” 

NAACP, 834 F.3d at 445 (citation and quotation omitted). 

Instead, as noted, Defendants are entitled to develop

prophylactic policies to avoid these risks rather than react after 

they occur.

 

also testified that at protests “there’s always a few people 

[who] will say something negative,” but she “just ignore[s] it.” 

App. 239. Though we commend Pomicter and her fellow 

protesters for not engaging with combative patrons, we agree 

with Sipe’s concern that such confrontations have the potential 

to escalate.
21

Plaintiffs also contend that the “minimally intrusive 

nature of leafletting”—as compared to solicitation—

distinguishes this case from other cases finding solicitation 

bans reasonable. Appellees’ Br. 27. Plaintiffs rely primarily on 

International Society for Krishna Consciousness v. Lee, where 

the Supreme Court upheld a solicitation ban but rejected a

leafletting ban within airport terminals. 505 U.S. at 685. Justice 

O’Connor’s controlling concurring opinion emphasized that 

the government had offered no justification at all for banning 

leafletting separate from banning solicitation. Id. at 691

(O’Connor, J., concurring).

13 In the absence of any 

explanation, the Court could not infer that leafletting—which 

it recognized was far less disruptive than solicitation—was 

incompatible with the shopping mall–like “multipurpose 

environment” of the terminal.14 Id. at 692 (O’Connor, J., 

concurring). Unlike in Lee, here Defendants have directly 

explained that any protest activity outside the designated areas 

could cause congestion or safety problems. While solicitation 

may be more disruptive than picketing and leafletting, we 

accept that these protest activities may also cause obstruction 

and congestion. See N.J. Sports, 691 F.2d at 161 (“Generally, 

 

13 As we have previously explained, “Justice O’Connor’s 

concurring opinion in [Lee] . . . speak[s] for the Court” as to its 

holding that the leafletting ban was unconstitutional. NAACP, 

834 F.3d at 444–45.

14 The context for this finding is important. Lee was 

decided in 1992, a time when airport terminals were “generally 

accessible to the general public.” Lee, 505 U.S. at 675. At these 

terminals, members of the public could go to “various 

commercial establishments such as restaurants, snack stands, 

bars, newsstands, and stores of various types.” Id.
22

the need to maintain public order justifies greater restrictions 

on active conduct such as picketing . . . .”) (citation omitted).

The concourse is also a different forum from the airport 

terminals in Lee, which hosted “a wide range of activities” and 

“extensive, nonforum-related activity.” 505 U.S. at 688, 691

(O’Connor, J., concurring). Here, the forum has a single

purpose: facilitating the entry and exit of patrons to the Arena. 

The location condition, intended to minimize any interference 

with the safe flow of patrons, is closely connected to that

purpose. Cf. Hawkins, 170 F.3d at 1290–91 (concluding a 

leafletting ban in a theater entryway is reasonable because of 

“risk of congestion” and the limited purpose of the forum).

Finally, we note Justice O’Connor concluded by stipulating she 

would find reasonable a policy confining leafletting to a 

“relatively uncongested part of the airport terminals.” Lee, 505 

U.S. at 692. As this adjustment resembles the “designated 

areas” used by the Arena, it further supports our decision to 

uphold the location condition.

Our conclusion that the Arena’s location condition is 

reasonable should not be mistaken to suggest that it is an 

insignificant burden on speech. Plaintiffs would be on strong 

footing and may very well prevail were this a public forum, 

where the narrow tailoring requirement “demand[s] a close fit 

between ends and means.” McCullen v. Coakley, 573 U.S. 464, 

486 (2014); see also Turco v. City of Englewood, --- F.3d ---, 

2019 WL 3884456, at *4 (3d Cir. Aug. 19, 2019). But for

nonpublic forums the Supreme Court has made clear there is 

no “requirement that [a] restriction be narrowly tailored.” 

Cornelius, 473 U.S. at 809. In these circumstances, because 

Defendants have met their “light” burden to show the location 

condition is reasonable in light of the purpose of the concourse, 

we cannot require more. See NAACP, 834 F.3d at 449.
23

2.

We next consider the profanity ban, which specifically

prohibits the “[u]se of profanity” by protesters, as well as 

“[a]ny promotional verbiage suggesting vulgarity or 

profanity.” App. 400. Defendants’ justification for this 

restriction is that “customers of the Arena should not be 

subjected to profane or vulgar language when attending a 

sports or entertainment event at the Arena.” Appellants’ Br. 36; 

see also App. 277. In determining whether the profanity ban is 

reasonable, we are guided by our opinion in NAACP, 834 F.3d 

435. As noted, the Philadelphia Airport explained its ban on 

noncommercial advertising as part of its efforts to create a 

pleasant environment within the entire Airport. But this 

explanation was inconsistent with the environment of the 

Airport; we observed that there was an “onslaught” of 

noncommercial, controversial content throughout the Airport.

Id. at 447. Because there was “little logic” to the inference that 

the city “would devote its advertising space to a purpose to 

which the rest of the Airport does not subscribe,” we concluded 

the ban on noncommercial advertising alone was not 

reasonable. Id.

We employ the same analysis and reach the same result 

here. Defendants’ explanation for the speech restriction is that 

they don’t believe customers should be subjected to profanity 

or vulgarity while attending Arena events. To determine if this 

is a valid restriction, we must consider whether it is consistent 

with “the atmosphere” at the Arena. Id. Defendants admit that 

the policy applies only to protesters, and there appears to be no 

similar ban or restrictions for patrons, staff, or others on the 

concourse. The restriction likewise does not apply within the 

Arena itself; there is no equivalent ban that applies to 
24

performers or athletes that are part of Arena events. Though 

Defendants’ goal may be legitimate, their means of achieving 

it is not. They cannot meet their goal by singling out protesters 

on the concourse. Accordingly, like the policy at issue in 

NAACP, we cannot conclude the Arena’s internally 

inconsistent profanity ban, applied exclusively to protesters, is

reasonable.

3.

Finally, we turn to the artificial voice amplification ban.

Defendants offer two explanations for the policy: first, that 

voice amplification could “interfere” with other activity at the 

Arena, such as announcements, “commercial vendors present 

on the premises,” or “the event inside the Arena”; and second, 

that it would “annoy the patrons as they enter and exit the 

building.” Appellants’ Br. 35. Because Defendants have not 

met their burden to establish the ban is reasonable in light of 

the purpose of the forum, we agree with the District Court that 

the amplification ban is unconstitutional on this record.

At trial, Sipe briefly testified about the potential 

interference caused by voice amplification. He said the Arena 

is “installing” a “sound system . . . that’s playing some arena 

policies for guests.” App. 277. In addition, the Arena 

“sometimes” has shows that sell merchandise outside the 

Arena, “so any voice amplification that would be louder than 

theirs would . . . inhibit that sale.” App. 276. Finally, 

amplification “could potentially, if it’s loud enough, interfere 

with what’s going on inside the venue.” App. 277. This limited 

testimony appears to be the extent of the record about the 

Arena’s amplification ban. The District Court found that this 
25

evidence was not enough to warrant a blanket ban, and instead 

in its final order allowed the Arena to promulgate a “rule that 

may restrict protesters from using voice amplification in 

specified contexts, in order to prevent potential interference 

with other permitted activities within the Arena.” App. 44. We 

agree with the Court’s well-reasoned decision.

Our opinion in NAACP makes clear that it is the 

government’s burden to provide a legitimate “explanation as to 

why certain speech is inconsistent with the intended use of the 

forum.” 834 F.3d at 445 (quoting Lee, 505 U.S. at 691–92 

(O’Connor, J., concurring)). The explanation must be 

supported by record evidence, or the record must “contain[] . . 

. information from which we can draw an inference that would 

support” the explanation. Id. (quoting Lee, 505 U.S. at 692 

(O’Connor, J., concurring)). Either way, “courts must have 

some way of evaluating restrictions.” Id. Here, the brief and 

equivocal references in Sipe’s testimony are not enough to 

provide a basis for us to assess whether the restrictions are 

reasonable.

Sipe’s description of the Arena’s sound system is

tentative and vague. Though Defendants can rely on the

purposes of the Arena more broadly in explaining speech 

restrictions, they still must explain how the protected speech 

would interfere with those purposes. As mentioned, Sipe 

testified the Arena was “installing” a sound system, which 

suggests it may not even be operational. And even assuming 

the sound system is functional, there is no indication where the 

sound system operates, how often announcements are made, or 

how loudly the announcements are broadcast. Absent this type 

of information, which would allow us to understand how voice 

amplification might disrupt Arena announcements, we are not 
26

willing to infer that amplification “is inconsistent with the 

intended use of the forum.” Lee, 505 U.S. at 692 (O’Connor, 

J., concurring); see also Kokinda, 497 U.S. at 732 (“[T]he 

significance of the governmental interest must be assessed in 

light of the characteristic nature and function of the particular 

forum involved.”) (quoting Heffron, 452 U.S. at 650–51).

Sipe’s cursory mention of vendors at the Arena 

similarly lacks substance. Again, the record lacks enough 

information to support an inference that amplification is 

inconsistent with the use of the forum. We are left to guess how 

often vendors use the concourse, where on the concourse they 

stand (including the proximity to the designated areas), and

whether they even use voice amplification in making sales. 

And in any event, to the extent Sipe’s testimony is that artificial 

voice amplification is permitted for vendors but prohibited for 

protesters, we again run into the problem of the Arena’s

policies being applied unevenly against protesters. If 

Defendants are concerned about amplification interfering with 

Arena announcements, we do not see how permitting vendors 

to use amplification is consistent with that purpose. See

NAACP, 834 F.3d at 447.

Moreover, if there is an operational sound system 

playing policies for guests or vendors that use the concourse, 

the District Court’s injunction allows the Authority to enforce 

a policy that “restrict[s] protesters from using voice

amplification in specified contexts, in order to prevent 

potential interference with other permitted activities within the 

Arena.” App. 44. We hold that Defendants’ interests are 
27

sufficiently protected by the Court’s order.15 The terms of the 

injunction also mitigate any potential concern about 

interference with events going on inside the Arena. The 

Authority could, for example, prohibit amplification during (as 

opposed to before and after) performances, which would easily 

and effectively address this concern.16

Defendants finally contend that banning voice 

amplification is necessary to avoid annoying patrons of the 

Arena. Unlike the other explanations, we find no mention of

this explanation in the record.17 Compounding the lack of 

record support, Defendants do not even attempt to explain the 

connection to the forum. They do not suggest that any 

hypothetical annoyance would have repercussions for the flow 

of pedestrian traffic or otherwise disturb the functioning of the 

Arena. Though amplification may be annoying, absent any 

connection to the purpose of the forum, this alone is 

insufficient to justify the speech restriction. And in NAACP we 

explained that “controversy avoidance” as a governmental 

 

15 We note that at oral argument, counsel for Defendants 

could not think of a situation in which the Court’s order would 

interfere with the Arena’s functioning or be problematic to 

administer. Oral Arg. Recording at 6:45–7:53.

16 The Authority could, alternatively, promulgate a policy 

that sets a certain decibel limit for any amplification. Such a 

restriction would be less prohibitive and allow the protesters’ 

message to reach a larger audience across the concourse, while 

avoiding any potential interference with Arena activity.

17 As far as we can tell from our review of the appendix, 

this rationale was not raised at all during the trial and the 

District Court therefore did not address it in concluding the 

amplification ban was not reasonable.
28

objective is “nebulous and not susceptible to objective 

verification.” 834 F.3d at 446. While it may sometimes be a 

valid governmental objective, we cautioned against “readily 

drawing inferences, in the absence of evidence, that 

controversy avoidance renders [a] ban constitutional.” Id.

(citing Cornelius, 473 U.S. at 812). Here, faced with a lack of 

record support demonstrating the justification for the ban or 

connection to the forum, we will not make inferences to fill the 

gaps and accordingly conclude the amplification ban is 

unreasonable.

IV.

In sum, we conclude that the Arena’s policy 

sequestering protesters to designated areas satisfies the 

reasonableness test for speech restrictions in nonpublic forums.

Accordingly, we will reverse the District Court’s order on this 

issue and remand for the Court to consider whether the policy 

passes muster under the Pennsylvania Constitution. Although 

we reach this conclusion here, we again emphasize that under 

other circumstances, if the nature of the forum were to change, 

our analysis would be different. With respect to the Arena’s 

protest policies banning profanity and artificial voice 

amplification, however, we agree with the District Court that 

Defendants have not met their burden to show that these 

restrictions are reasonable in light of the purpose of the forum, 

and we will therefore affirm.