The opinion of the court was delivered by: William W. Caldwell United States District Judge
The plaintiffs are the World Wide Street Preachers' Fellowship, a ministerial fellowship of Christian street preachers, and James Grove, a street preacher and member of the fellowship. Plaintiffs filed this civil rights action alleging their First Amendment rights were violated in July 2003 during PrideFest, an annual event held in Harrisburg, Pennsylvania.
They named as defendants Stephen R. Reed, the Mayor of Harrisburg, in his official capacity; Tina Manoogian-King, Harrisburg's Director of Parks and Recreation, in her official and individual capacities; Thomas Carter, a corporal with the Harrisburg Police Department, in his official and individual capacities; and Stephanie Barrelet, an officer with the police department, in her official and individual capacities.
We are considering the plaintiffs' request for permanent injunctive relief that would bar the city from enforcing: (1) a fifty-foot buffer zone around the area for the festival; and (2) the decision of the PrideFest organizers to exclude street preachers from an area that, while it was within the area permitted for the festival, was not being used by the festival.*fn1
The evidence at trial supports the following findings. Riverfront Park is a public park in the City of Harrisburg that runs in a north-south direction between the Susquehanna River on the west and Front Street on the east. The PrideFest organizers obtained a permit from the city's Department of Parks and Recreation to hold the PrideFest on July 26, 2003, at the southern end of the park. The festival was held between noon and 7:00 p.m.
As enforced by the city, a permit gives the holder the exclusive use of the permitted area while the permit is in effect, although there is nothing on the face of a permit indicating the use is exclusive. The city will also exclude persons from the permitted area at the request of the permit holder, for no reason or for any reason, even if based on the permit holder's objection to the content of the person's speech.*fn2
The permitted area of the park was roughly shaped like a narrow rectangle. The permitted area's width was the western curb line of Front Street to the top of the river's embankment. Beginning from the south, its length started at a spot underneath a railroad bridge close to the three-way intersection of Front, Vine and Paxton Streets and ran north to Market Street.
At the request of the event organizers, the city enclosed a portion of the permitted area with an orange-colored, plastic, mesh fence. There were two entrances to the enclosed area, the South Gate, underneath the railroad bridge at the south end of the permitted area, and the North Gate. The North Gate was about midway between the southern end of the permitted area and the northern end of the permitted area at Market Street. The fence ran from the South Gate north along the western curb line of Front Street to the North Gate.
Roughly half, if not slightly more, of the permitted area was enclosed. Events at the festival were held in this area and an admission fee was charged to enter. There was no admission fee for the unfenced area to the north, between North Gate and Market Street. Park Director Manoogian-King testified that there was an "area of reflection" in the unfenced area, toward Market Street, where rainbow-colored flags contained the names of persons who had passed on or some other message. She saw people sitting on park benches or on the grass mourning or meditating. She could not say how far this area of reflection was from the North Gate.
B. The Street Preachers' Attempt to Use the Unfenced Portion of the Permitted Area
Michael A. Marcavage came to an area of the park very close to the North Gate, if not the North Gate itself. This area was within that portion of the permitted area that was unfenced. Marcavage expressed a desire to the police officers there that he wanted to talk to the people approaching the festival through the North Gate. Marcavage is a Christian evangelist who travels to events like ...