Two new opinions

These two opinions issued yesterday but were posted on the court’s website late due to technical issues and I didn’t see them until this morning.


Pomicter v. Luzerne County Conv. Ctr.—First Amendment—partial reversal—Scirica

An animal-rights group sought to protest a circuit being held at a county convention center and were told that they must stay inside enclosed areas near the entrance and must not use profanity or voice amplification. The group sued, alleging that these protest policies facially violated their First Amendment free speech rights. The district court agreed, but yesterday the Third Circuit reversed in part. The protesters conceded that the convention center was a nonpublic forum, where restrictions on speech are constitutional if reasonable, and the Third Circuit held that the enclosure requirement was reasonable, but that the bans on profanity and voice amplification were not.

Joining Scirica were Ambro and Greenaway Jr. Arguing counsel were Thomas Campenni of Rosenn Jenkins & Greenwald for the convention center and former Greenberg clerk Alexander Bilus of Saul Ewing for the protesters.


Prometheus Radio Project v. FCC—civil / telecom—partial affirmance—Ambro

“Here we are again,” begins the Third Circuit’s opinion in the latest round of litigation challenging Federal Communications Commission rules on broadcast media ownership. The court (1) upheld the FCC’s rule barring mergers by two of the top four stations in a market, and (2) upheld provisions of the FCC’s incubator program for helping new entrants break into the broadcast industry, but (3) vacated the bulk of the FCC’s actions over the past three years involving broadcast ownership by women and racial minorities: ” Although it did ostensibly comply with our prior requirement to consider this issue on remand, its analysis is so insubstantial that we cannot say it provides a reliable foundation for the Commission’s conclusions.”

Joining Ambro was Fuentes; Scirica dissented in part, arguing that the FCC’s actions all pass muster and should be allowed to go into effect. Arguing counsel were Cheryl Leanza of Washington D.C. for one group of petitioners, Dennis Lane of D.C. for another petitioner group, Jack Goodman of D.C. for another petitioner group, Helgi Walker of Gibson Dunn for an intervenor, and Jacob Lewis for the FCC.