Judge denies preliminary injunction sought against Wells Fargo Center by animal activists

By Jon Campisi | Dec 30, 2011

A federal judge in Philadelphia has denied a motion for preliminary judgment that had been filed by two members of an animal rights organization seeking to enjoin the owners of the Wells Fargo Center from enforcing its policy prohibiting picketing on the sidewalks adjacent to the Philadelphia entertainment venue.

In a memorandum filed Dec. 27, U.S. District Court Judge Petrese B. Tucker wrote that the ban on unauthorized leafleting and picketing put in place by Spectrum Arena, L.P. does not infringe on the constitutional rights of Marianne Bessey and Edward Coffin.

The two plaintiffs are animal rights advocates who have demonstrated against animal exploitation and abuse at various venues throughout the years.

In 2010, the memorandum states, the plaintiffs, accompanied by other protesters, held a demonstration in the parking lot area of the Wells Fargo Center to bring attention to the alleged mistreatment of animals by the Ringling Brother’s Barnum and Bailey Circus.

The activists were denied admittance to the event, but were granted reentry to the grounds after they purchased a ticket.

Spectrum Arena officials attempted to get the protesters arrested, but when Philadelphia Police refused to do so, the organization filed a trespass complaint against Bessey in the Philadelphia Court of Common Pleas, and sought a temporary restraining order against her, the memorandum states.

Spectrum Arena later filed a second state court action for trespass against Bessey after she attempted to hold another demonstration in the parking lot of the Wells Fargo Center.

That second action is also pending in Philadelphia’s Common Pleas Court.

The plaintiffs most recently sought to demonstrate at the center over its production of Disney on Ice due to the “financial connection between [show producer] Feld Entertainment and the Circus,” according to the memorandum.

The memorandum states that the plaintiffs filed for a preliminary injunction because the state proceeding “will not necessarily resolve uncertainty about the legality of SALP’s speech ban as it pertains to Bessey and Coffin and because the state proceeding may not reach a resolution before Plaintiffs wish to protest on December 22, 2011.”

The judge refused to grant a preliminary injunction for various reasons. For one, Tucker stated that the plaintiffs aren’t likely to succeed on their claim that SALP’s ban on protesting violates the plaintiffs’ First Amendment rights.

“First Amendment rights, like most federal constitutional rights, are secured only against infringement by state action,” the memorandum states. “A private entity may only be deemed to be acting under color of law if it has been delegated an inherently governmental function, acts under government coercion or is engaging in a symbiotic relationship with a government agency or in activity with which the government is pervasively entwined.”

The decision goes on to state that “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 government function.”

The ruling also states that while the Wells Fargo Center benefits the city’s tax base, the revenue collection aspect “is inadequate to demonstrate government action.”

“SALP is not a state actor,” the memorandum states.

The ruling goes on to state that even if SALP were considered a state actor, the Wells Fargo Center isn’t a public forum.

“The Third Circuit [Court of Appeals] 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 memorandum states.

The memorandum also states that protest activities inside the parking lot of the Wells Fargo Center and the sidewalks around its perimeter has the potential to disrupt the flow of traffic around the venue and “possibly lead to confusion and confrontation among the patrons.”

The judge’s decision follows a hearing on the preliminary injunction matter that took place on Dec. 5.

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