Ross v. Early, 2011 U.S. Dist. LEXIS 18905

Ross challenged a city policy restricting sidewalk demonstrators around First Mariner Arena during circus performances; the policy (the Protocol) restricted where demonstrators could stand, allegedly limiting First Amendment rights.
The Protocol emerged after 2003 traffic/pedestrian congestion problems caused by a PETA truck; 2004 protocol formalized sidewalk restrictions involving the east, north, and west sides of the Arena.
Ross was arrested in 2008 and 2009 for leafleting outside the designated area; arrests were videotaped and involved Officer Early, who co-owned security company with Feld Entertainment.
The City argued the Protocol targeted to curb congestion from circus protests and that it was a content-neutral time/place/manner restriction serving a significant government interest.
The court initially denied summary judgment on facial/as-applied First Amendment challenges and held issues remained for the jury; reconsideration addressed qualified immunity and narrowed relief.
The February 25, 2011 order granted qualified immunity to most defendants, except Officer Early, and entered judgment against Ross on Counts IV and X of the Second Amended Complaint.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Protocol is facially unconstitutional under the First Amendment	Ross contends the Protocol targets demonstrators and violates speech rights	City Defendants argue the Protocol is a valid time/place/manner restriction	Facial challenge survives only if protocol is targeted; jury must decide general applicability vs injunction-like tailoring
Whether the Protocol, even if facially neutral, was applied discriminatorily against Ross	Ross alleges enforcement targeted animal-welfare demonstrators	Barclay/Officers claim neutral application; any animus disputed	As-applied challenge survives; jury to determine discriminatory enforcement (animus possible)
Whether the Protocol is narrowly tailored under Ward v. Rock Against Racism or the heightened Madsen standard	Protocol not narrowly tailored to address past problems; overbroad	If generally applicable, Ward standard may apply; if injunction-like, Madsen applies	Fact issue on tailoring; protocol potentially broadly tailored or injunctive in nature depending on general applicability, for jury to decide
Whether Officers are entitled to qualified immunity for the First Amendment claims	Ross argues officers violated clearly established rights	Officers acted reasonably under the protocol given beliefs of applicability	Officer Early not entitled to qualified immunity; remaining defendants granted immunity

Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (U.S. 1983) (content-neutral restriction must be narrowly tailored and provide alternatives)
Ward v. Rock Against Racism, 491 U.S. 781 (U.S. 1989) (no broader than necessary; balance of government interest and ample alternatives)
Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (U.S. 1985) (forum analysis; public forum protections)
Schenck v. Pro-Choice Network of W. N.Y., 519 U.S. 357 (U.S. 1997) (leafletting and public speech in public forums protected)
Heffron v. Int'l Soc'y for Krishna Consciousness, Inc., 452 U.S. 640 (U.S. 1981) (public forum restrictions may be permissible for safety/flow concerns)
Cox v. Louisiana, 379 U.S. 536 (U.S. 1965) (state interest in maintaining safe movement on public streets)
Madsen v. Women's Health Ctr., Inc., 512 U.S. 753 (U.S. 1994) (heightened tailoring for injunctions; factors for narrowly tailored restrictions)
City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (U.S. 1986) (secondary effects doctrine; content-neutral restrictions may be permissible)
City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (U.S. 1993) (content-neutral restrictions; speech context matters)
McTernan v. City of York, 564 F.3d 636 (3d Cir. 2009) (heightened scrutiny extended to non-injunction restrictions)
Huminski v. Corsones, 386 F.3d 116 (2d Cir. 2004) (heightened scrutiny applicable beyond injunctions)