June 2020 - Parks & Recreation - 37

tected content-based speech " only
if the government can show that
the regulation is a precisely drawn
means of serving a compelling
state interest. "
In this particular instance, plaintiff Crowley had testified that
" there was no threat of violence "
in 2015. Based upon the following
facts, the court found the evidence
was " susceptible of more than one
reasonable inference as to whether
there was an " immediate threat to
public safety " and whether defendant Conway's actions were narrowly tailored to respond to a compelling state interest " :
Defendant Conway repeatedly
testifies that although no violence
or threats of violence had yet occurred at Mumfest, he anticipated
violence based on the reactions of
the crowd to plaintiffs' speech, as
well as prior encounters between
plaintiffs and Mumfest attendees.
However, the footage of defendant
Conway calling over the utility
cart to separate plaintiffs from the
crowd does not readily disclose any
acts portending violence by festival attendees. Other video footage
demonstrates and provides the
basis for an inference that, even
where festival attendees challenged
plaintiffs, challenges did not result
in altercations.
Under these circumstances, the
federal district court found there
was " a genuine issue of material
fact regarding whether defendant
Conway's actions appropriately
redressed a threat to public safety
caused by spectators reacting to
plaintiffs' preaching. "

" Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. " Further, as noted by
the court, the Free Exercise Clause
of the First Amendment provides
protection against a law that " discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken
for religious reasons. "
According to the court, any such
governmental regulation of religious activity is " constitutionally
valid only if it is narrowly tailored
to achieve a compelling state interest. " Moreover, the court acknowledged: " the Free Exercise Clause
does not inhibit enforcement of
otherwise valid regulations of general application that incidentally
burden religious conduct. " In this
particular instance, the federal district court found plaintiffs' speech
claims mostly involved " neutral
regulations of general applicability
that incidentally burden plaintiffs'
religious conduct. "
The court, however, questioned
the motivation behind " Conway's
decision to move plaintiffs from
Middle Street to the sidewalk and to
place a beeping cart in front of plaintiffs while preaching. " If " these actions were taken due to the crowd's
response to plaintiffs' religious message, " the federal district court would
subject this decision to " strict scrutiny. " Specifically, the court would
require a trial in which New Bern
would have the significant burden of
" showing that defendant Conway's
actions were narrowly tailored to not
burden plaintiffs' religion. "

Free Exercise of Religion

Conclusion

As cited by the federal district
court, the First Amendment states:

As described above, the federal
district court held the challenged

ordinance was content neutral.
Specifically, the court found the
picketing ordinance " does not
address the specific message invoked by the signs, flags, or banners carried on staves or poles. "
Moreover, the court found the
stated purpose of the picketing
ordinance served " substantial
government interests, " viz., " to
allow safe and unobstructed passage of pedestrian or vehicular
traffic on sidewalks or other cityowned areas. "
The federal district court, therefore, granted summary judgment
in favor of New Bern dismissing plaintiffs' First Amendment
claims based on " plaintiff O'Connell carrying a nine-foot-tall
cross. " Similarly, the court held
the ordinance was content neutral
in restricting " plaintiffs' use of a
megaphone, and plaintiff Crowley
being prohibited from distributing
literature in the vendor area at the
festival. "
The federal district court, however, denied New Bern's request
for summary judgment on a totally separate First Amendment
claim under the circumstances of
this case. The court would allow
plaintiffs' lawsuit to proceed to
trial on the sole issue of whether
defendant Conway had infringed
plaintiffs' freedom of speech
rights and free exercise of religion
rights by " moving them from the
barricaded roadway to the sidewalk and placing a beeping utility
cart in front of them. "
James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate
Professor in the School of Sport, Recreation, and Tourism
Management at George Mason University (jkozlows@gmu.edu).
Webpage with link to law review articles archive (1982 to
present): mason.gmu.edu/~jkozlows.

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