Christian Evangelists May Move Ahead With Part of Their Challenges To Restrictions On Them At City Festival

In O'Connell v. City of New Bern, North Carolina, (ED NC, March 10, 2020), a North Carolina federal district court allowed two Christian evangelists to move ahead with certain of their claims of unconstitutional treatment at the city's Mumfest-- an annual fall festival held in the historic downtown district.  The court held that the city did not infringe plaintiffs' 1st Amendment rights in barring them from carrying a nine-foot tall cross, using a loud megaphone to proselytize, or distributing literature, all in violation of city ordinances. The court did however allow plaintiffs to move ahead with their free speech and free exercise challenges to an officer moving them from the roadway to the sidewalk and placing a beeping firetruck and then a beeping utility cart between them and festival attendees who had gathered in the intersection.  The court said in part:

Defendant Conway testified that he ... placed a beeping cart in between plaintiffs and festival attendees because people were “getting aggravated” and “becoming aggressive” towards plaintiffs’ group.... Defendant Conway testified that individuals waived a rainbow flag in plaintiff O’Connell’s face and yelled at him.... In the past, individuals threw Mountain Dew bottles at plaintiff O’Connell, threatened plaintiff O’Connell with violence, and assaulted the police officers guarding plaintiff O’Connell....  Because “[l]isteners’ reaction to speech is not a content-neutral basis for regulation,” the court applies strict scrutiny to defendant Conway’s decision to order plaintiffs to the sidewalk and place a beeping cart between them and festival attendees in 2015.