O'Connell v. Town of Burgaw, North Carolina, 7:17-cv-00065

Background

Plaintiff Patrick O’Connell, a resident who engages in religious, political, and social speech, sought injunctive, declaratory, and monetary relief and moved for a preliminary injunction against Town of Burgaw Ordinance 2015-25 (Burgaw Code § 24-30).
The Ordinance designates an "alternate public forum" (a specific western block adjacent to N. Dudley St.) during festivals using the Pender County Courthouse Square, and purports to remove forum status from the Square and nearby sidewalks/streets from 7:00 a.m. the day before a festival until 7:00 p.m. the day after.
O’Connell intended to speak, distribute literature, carry signs, and record at the Town’s Blueberry Festival and feared enforcement of the Ordinance against those activities.
The Town defended the Ordinance as a time, place, and manner regulation aimed at pedestrian flow, public safety, and congestion control during festivals.
After a hearing, the court found O’Connell likely to succeed on the merits of his First Amendment facial challenge, granted a preliminary injunction, and enjoined enforcement of the Ordinance pending further order.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Ordinance is a permissible time, place, and manner restriction in a traditional public forum	Ordinance facially bans or displaces protected speech in the Courthouse Square and adjacent streets/sidewalks during festivals and is not narrowly tailored	Ordinance is a narrow means to ensure pedestrian flow, safety, and reduce congestion during festivals	Held: Ordinance is not narrowly tailored and is substantially broader than necessary; not a valid time, place, manner restriction
Whether the Town can designate an alternate forum and strip historic public-forum status from the Square by ordinance	Town cannot, by fiat, eliminate traditional public-forum status or ban mingling and face-to-face communication there	Town claimed authority to designate an alternate forum for festival periods	Held: Town cannot destroy public forum status by ordinance; the Code improperly displaces speech and assembly
Whether the Ordinance is unconstitutionally vague/standardless as to enforcement	Ordinance gives enforcement officials too much discretion and lacks standards, raising vagueness and selective-enforcement concerns	Defendants attempted to construe/enforce narrowly at argument	Held: Court expressed grave concerns about standardlessness and declined to rewrite the law; vagueness/enforcement discretion problematic
Whether preliminary relief was warranted	O’Connell faces irreparable First Amendment harm and balance of equities/public interest favor injunction	Town would be harmed by enjoining a safety/congestion regulation	Held: Preliminary injunction granted — O’Connell likely to succeed on the merits; irreparable harm shown; equities and public interest favor injunction

Key Cases Cited

Winter v. Natural Resources Defense Council, 555 U.S. 7 (preliminary injunction standard) (2008) (sets multi-factor test for injunctive relief)
Centro Tepeyac v. Montgomery County, 722 F.3d 184 (4th Cir. 2013) (preliminary injunction and First Amendment standards)
Real Truth About Obama, Inc. v. FEC, 575 F.3d 342 (4th Cir. 2009) (injunction standards)
Bays v. City of Fairborn, 668 F.3d 814 (6th Cir. 2012) (festival/forum restrictions and tailoring)
Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (public forum principles)
City of Ladue v. Gilleo, 512 U.S. 43 (regulation of residential signs and expressive conduct)
United States v. Kokinda, 497 U.S. 720 (forum analysis)
Boos v. Barry, 485 U.S. 312 (content- and speaker-based restrictions at embassies)
Edwards v. South Carolina, 372 U.S. 229 (right to peaceful public demonstration)
Murdock v. Pennsylvania, 319 U.S. 105 (street solicitation and expression protection)
Arkansas Educational Television Commission v. Forbes, 523 U.S. 666 (public forum definition)
Frisby v. Schultz, 487 U.S. 474 (regulation of speech in traditional public fora)
Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (forum doctrine: traditional, designated, nonpublic)
Hague v. Committee for Industrial Organization, 307 U.S. 496 (streets and parks as public forums)
United States v. Grace, 461 U.S. 171 (streets as public forum; limits on content-neutral restrictions)
Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640 (fairground fixed-location rules upheld where reasonable and narrowly tailored)
Ward v. Rock Against Racism, 491 U.S. 781 (narrow tailoring in time, place, manner restrictions)
Hill v. Colorado, 530 U.S. 703 (buffer-zone and tailoring analysis)
U.S. Postal Service v. Council of Greenburgh Civic Ass’ns., 453 U.S. 114 (government cannot remove forum status by fiat)
McCullen v. Coakley, 134 S. Ct. 2518 (narrow tailoring and breadth of sidewalk restrictions)
Reynolds v. Middleton, 779 F.3d 222 (4th Cir. forum/tailoring analysis)
Ross v. Early, 746 F.3d 546 (location restrictions upheld where demonstrated safety/obstruction harms)
Kolender v. Lawson, 461 U.S. 352 (vagueness and enforcement discretion)
Coates v. City of Cincinnati, 402 U.S. 611 (vagueness of conduct statutes)
Niemotko v. Maryland, 340 U.S. 268 (selective enforcement of permit regimes)
Child Evangelism Fellowship of Md., Inc. v. Montgomery County Pub. Sch., 457 F.3d 376 (forum and viewpoint neutrality concerns)
Elrod v. Burns, 427 U.S. 347 (loss of First Amendment freedoms as irreparable harm)
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (balance of equities and student speech principles)
Cox v. Louisiana, 379 U.S. 559 (content-neutral regulations and public order)
Cox v. New Hampshire, 312 U.S. 569 (permit systems and public assembly)
Thomas v. Chicago Park Dist., 534 U.S. 316 (content neutrality in public forums)
Organization for a Better Austin v. Keefe, 402 U.S. 415 (restrictions on distribution and content/viewpoint neutrality)