HARRISBURG – The City of Harrisburg has requested that a preliminary injunction sought by a coalition group of climate change activists seeking to stage a mid-June rally there be denied, arguing that the activists have not shown reason for such an injunction to be imposed or that their constitutional rights were violated.
Better Path Planning Coalition Group (an unincorporated association) and Karen Feridun first filed suit in the U.S. District Court for the Middle District of Pennsylvania on April 29 versus the City of Harrisburg and its Mayor, the Hon. Wanda R.D. Williams.
The plaintiffs want the Court to order that Harrisburg may not enforce its current permitting rules and allow them to move forward with their planned “Climate Convergence,” a family-friendly slate of events to be held from June 11-13, at Riverfront Park and the Pennsylvania State Capitol.
According to the plaintiffs, their requests for the necessary permits were met by the City with an overbroad list of requirements that they argue was tantamount to “a standard-less prior restraint to core political speech in traditional public forums.”
Though the plaintiffs’ efforts with the City were making headway into the spring, the two sides reached a stalemate over $576 in fees for traffic control connected to a march from Riverfront Park to the Capitol steps on Sunday, June 12, in addition to a yet-to-be-ascertained fee to account for money lost from any metered parking spaces which would need to be blocked off.
The plaintiffs further argued that many of the City’s requirements for permit applications are beyond the financial reach of a modestly-budgeted organization, with fees associated with the “Climate Convergence” totaled over $2,100.
“The City has no other ordinance governing the use of other traditional public forums, such as City streets and sidewalks. Absent any duly-promulgated law to regulate demonstrations in public streets, and no promulgated guidelines to regulate fees, insurance and indemnification requirements in any traditional public forum, Harrisburg officials effectively have unbridled discretion to decide who gets to use public spaces and on what terms Harrisburg gave plaintiffs three documents that purport to regulate use of public forums. Their provenance and historical application are not readily ascertainable,” the suit said.
“Free speech doesn’t come with an entrance fee. The right to freely assemble and peacefully demonstrate is a cornerstone of our democracy. We must remain vigilant in defending that right, especially when it is being violated at our state capitol,” Reggie Shuford, Executive Director of the ACLU of Pennsylvania, said.
“Harrisburg’s permitting process is an inaccessible maze of unnecessary bureaucracy and a patchwork of unconstitutional costs, insurance fees and other problematic requirements. There are countless examples of municipalities that offer a streamlined permitting process that don’t include unconstitutional conditions. Harrisburg can and must do better,” Stephen Loney, a member of plaintiff counsel, added.
On May 3, U.S. District Court for the Middle District of Pennsylvania Judge Christopher C. Conner ordered that the plaintiffs’ motion for a temporary restraining order and preliminary injunction is denied without prejudice as to the request for a temporary restraining order, but deferred as to the request for a preliminary injunction.
Conner further ordered that a hearing and oral argument on the plaintiffs’ motion for preliminary injunction is scheduled for Tuesday, May 24.
UPDATE
The City of Harrisburg replied with a brief on May 16, in support of its argument that the motion for preliminary injunction should be denied.
“The City simply wishes to prevent chaos and enhance public safety by preventing competing events using the same park space at the same time during the busiest use period of the year, and facilitating a safe means to march. The regulations and fees are narrowly tailored to accomplish these goals and the fees are rationally related to direct costs. However, the fees are far under actual costs for the City to accommodate the events. As such, they are nominal,” the City’s reply stated, in part.
“In fact, as to the march there is a free option. Plaintiffs can simply march on the sidewalks without permitting or charge of any kind. The City’s regulatory system is completely content-neutral and has been used successfully for many years. Plaintiffs separate the festival events from the march in their electronic literature, but try to conflate the festival event and the march into one mass for their argument. It is important legally to understand the activities are two different things. This legal view also reflects the reality since plaintiffs concede the festival is a separate event and the parade is on an entirely different day (June 11 then June 12).”
The City further argued that granting the injunction would do it irreparable harm.
“[The City] does have an interest in regulating competing uses of public space so there can be some prior restraint on free speech where the regulations do not delegate overly broad licensing discretion, there are valid time, place and manner restrictions, there are alternatives for communication, the restrictions are narrowly tailored to serve a significant government interest, and are content-neutral,” according to the City.
For a count of First and Fourteenth Amendments rights violations, the plaintiffs are seeking the following reliefs:
• A declaration that Harrisburg’s permitting scheme to regulate uses of the City’s traditional public forums violates plaintiffs’ rights under the First and Fourteenth Amendments to the Constitution;
• A declaration that Harrisburg’s fee-shifting, insurance, indemnification, notice and traffic-control-plan requirements violate the First Amendment;
• An injunction enjoining the City from enforcing the following requirements for demonstrations in traditional public forums:
• Insurance, indemnification, permit and service fees for use of public parks and roads, fee shifting for police, traffic or any other fees and costs, plus other requirements, such as paying for parking spaces, providing advance notice to nearby homeowners and businesses, and developing traffic-control plans.
• Awarding the plaintiffs costs and attorneys’ fees pursuant to 42 U.S.C. Section 1988; and grant such other relief as this Court deems just and appropriate.
The plaintiffs are represented by Connor P. Hayes, Richard Ting, Witold J. Walczak and Stephen A. Loney of the ACLU of Pennsylvania, in Pittsburgh and Philadelphia.
The defendants are represented by Frank J. Lavery Jr. and Murray Joseph Weed of Lavery Law, in Harrisburg.
U.S. District Court for the Middle District of Pennsylvania case 1:22-cv-00623
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com