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O'Connell v. Town of Burgaw

United States District Court, E.D. North Carolina, Southern Division

June 13, 2017

PATRICK O'CONNELL, Plaintiff,
v.
TOWN OF BURGAW, NORTH CAROLINA, and JIM HOCK, Defendants.

          ORDER AND PRELIMINARY INJUNCTION

          JAMES C. DEVERII Chief United States District Judge

         On March 29, 2017, plaintiff filed his verified complaint seeking injunctive, declaratory, and monetary relief for the violation of his constitutional rights. See [D.E. 1]. On April 28, 2017, plaintiff filed four exhibits referenced in his verified complaint. See [D.E. 9]. On May 3, 2017, plaintiff filed a motion for a preliminary injunction challenging Town of Burgaw Ordinance 2015-25, which is codified in Burgaw Town Code, Section 24-17 (the "Code") as violating the First Amendment facially and as applied. See [D.E. 10].

         The Code provides:

WHEREAS, the Pender County Courthouse Square is a traditional public forum, which is open to the general public to exercise each individual's right of free speech pursuant to the First Amendment to the United States Constitution; and
WHEREAS, at certain limited times during a calendar year, festivals are held on the grounds of the Pender County Courthouse Square and the sidewalks and streets located within the immediate area to the Pender County Courthouse Square; and
WHEREAS, during these festivals, the festival committee who is sponsoring the festival shall have received prior authorization from the Town of Burgaw and the County of Pender to utilize the Pender County Courthouse Square and the adjacent sidewalk and streets for the utilization of these public areas during designated times for the purpose of having and conducting their festival activities, and
WHEREAS, in order to eliminate any conflicts as to the priority over the use of the public areas utilized during a festival and to avoid any infringement on an individual's right to exercise their right of free speech during a festival, the Town of Burgaw believes that it is in the best interest of the public that an alternate public forum be designated during a festival for a person to go to and exercise their right of free speech.

         NOW THEREFORE, BE IT ORDAINED BY THE TOWN OF BURGAW BOARD OF COMMISSIONERS THAT:

I. Amend the Town of Burgaw Code of Ordinances to add Section 24-30 as follows:
Sec. 24-30. - Designation of Alternate Public Forum to Exercise Free Speech
During any festival where the Pender County Courthouse Square is utilized for festival activities, the western portion of the block located between West Bridgers Street and West Wilmington Street and immediately adj acent to North Dudley Street shall be designated as the alternate public forum for any individual who desires to exercise their right of free speech pursuant to the First Amendment of the United States Constitution from 7:00 a.m. on the day before the commencement of the festival until 7:00 p.m. on the day after the commencement of the festival. The designation of this alternate public forum shall be effective only when the Pender County Courthouse Square and the sidewalks and streets located within the immediate area to the Pender County Courthouse Square have been authorized by the Town of Burgaw's governing body to be utilized for festival activities pursuant to a request by an organized festival committee. Unless otherwise preempted by an ordinance of the County of Pender, a resolution of the governing body of the County of Pender, federal or North Carolina law, the Pender County Courthouse Square is acknowledged as a public forum where members of the public can exercise their right to free speech.

See [D.E. 21-2]. The Code became effective at 12:01 a.m., on October 14, 2015. See id.

         Plaintiff is a citizen and resident of North Carolina who seeks to speak to people about his views regarding religious, political, and social topics. See [D.E. 1] ¶¶ 4, 14-15. Plaintiff seeks to speak to people who have attended and will attend the Town of Burgaw's Blueberry Festival, which is held each June on the public streets and sidewalks surrounding the Pender County Courthouse Square. See id ¶¶ 24-33. As part of his speech, plaintiff speaks to people, distributes free literature, and carries portable signs. See Id. ¶¶ 28-29, 31. Plaintiff also "records public events for commentary and distribution." Id. ¶ 30. Plaintiff plans to speak during the Blueberry Festival on June 17 and 18, 2017, but is concerned he will be arrested, incarcerated, and fined for violating the Code. See Id. ¶¶ 33-35.

         On May 31, 2017, defendants responded in opposition to plaintiff s motion for a prelirninary injunction. See [D.E. 21]; see also [D.E. 22, 24]. On Tuesday, June 13, 2017, the court held a hearing and considered the arguments of plaintiff and ...


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