June 2020 - Parks & Recreation - 35

tent-neutral regulations must not " burden substantially
more speech than is necessary to further the government's legitimate interests. " Further, for the picketing
and noise ordinances to pass constitutional muster, the
court found New Bern had to " make some evidentiary showing that the recited harms are real, not merely
conjectural, and that the challenged regulation alleviates
these harms in a direct and material way. "
The federal district court further noted that " a valid time, place, and manner restriction " must also leave
open " ample alternative channels for communication. "
According to the court, ample alterative channels for
communication must " allow the ability to communicate effectively " and allow " the more general dissemination of a message. "

Content Neutral Height Restriction
In this particular instance, O'Connell challenged his
being " restricted from bringing his cross into Mumfest
or expanding the cross. " In the opinion of the federal
district court, " application of the prohibition on picketers bringing items over 40 inches tall into the festival was content neutral. " Further, the court found the
ordinance was " narrowly tailored based on a specific
height requirement of 40 inches. "
O'Connell had argued New Bern had failed to
" demonstrate that prohibiting his nine-foot cross was
content neutral or served significant government interests in public safety and traffic flow because other
festival attendees had carried five-foot-tall 'windmills'
in the festival. As characterized by the court, this argument did not " raise a meaningful comparison, "
because plaintiffs had failed to " come forward with
facts showing the festival attendees carrying windmills were subject to defendant New Bern's picketing
ordinance or were engaging in expressive activity. " In
other words, plaintiffs had failed to demonstrate that
the windmills at Mumfest were in any way intended
to convey or connect to a message as part of any protest or demonstration.
In addition, the federal district court found O'Connell had " ample alternative channels of communication to disseminate his religious message. " Specifically,
the federal district court noted O'Connell " could have
carried a cross into the festival to aid in disseminating
his message if the cross was no more than 40 inches
tall, or that he could display the nine-foot cross on the
public sidewalks and streets outside the festival area. "

Megaphone Restriction
Plaintiffs also claimed New Bern had violated their First
Amendment rights by " not allowing them to use a megaphone to preach. " The federal district court, however,
found the city ordinance restricting sound amplification
devices was " content neutral, " because " application of the
ordinance did not depend on the fact that plaintiffs were
using the megaphone to project a religious message to festivalgoers. " Further, the court found application of the noise
ordinance in this particular instance " advances a significant
government interest in restricting loud and raucous noises "
and the " 100-foot noise limitation for sound amplification
devices " was narrowly tailored to serve that interest.
According to the federal district court, plaintiffs also
had " ample alternative channels of communication "
because they were " not prohibited from using the megaphone at a lower volume, and they were free to preach
using their voices without amplification. " As a result,
the federal district court concluded application of the
noise ordinance to plaintiffs' use of a megaphone did
not impermissibly restrict plaintiffs' religious message

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June 2020 - Parks & Recreation

Table of Contents for the Digital Edition of June 2020 - Parks & Recreation
