PRECEDENTIAL


    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT
              ___________

                  No. 18-2380
                  ___________


            SILVIE POMICTER;
        LAST CHANCE FOR ANIMALS

                        v.

  LUZERNE COUNTY CONVENTION CENTER
           AUTHORITY; SMG,
                         Appellants
        _______________________

  On Appeal from the United States District Court
      for the Middle District of Pennsylvania
      (D.C. Civil Action No. 3-16-cv-00632)
   District Judge: Honorable Robert D. Mariani
                 ______________

              Argued: April 16, 2019

Before: AMBRO, GREENAWAY, JR., and SCIRICA,
                Circuit Judges.

           (Filed: September 23, 2019)
Donald H. Brobst
Thomas J. Campenni [ARGUED]
Robert L. Gawlas
Rosenn Jenkins & Greenwald
15 South Franklin Street
Wilkes-Barre, PA 18711
   Counsel for Appellants


Alexander Bilus [ARGUED]
Amy S. Kline
Meghan J. Talbot
Saul Ewing Arnstein & Lehr
1500 Market Street
Centre Square East, 38th Floor
Philadelphia, PA 19102

Mary Catherine Roper
American Civil Liberties Union of Philadelphia
P.O. Box 60173
Philadelphia, PA 19106

Vic Walczak
American Civil Liberties Union of Philadelphia
247 Fort Pitt Boulevard
Pittsburgh, PA 15222
    Counsel for Appellees


                    _________________

                OPINION OF THE COURT
                   _________________




                                 2
SCIRICA, Circuit Judge.

        This appeal involves government restrictions on speech
at a publicly owned arena in Wilkes-Barre, Pennsylvania. The
primary issue we must resolve is whether the government’s
policy sequestering all protest activity to enclosures by each
entrance of the Mohegan Sun Arena is facially unconstitutional
under the First Amendment. In a public forum—a government
space dedicated to the free exchange of ideas—the governing
authority may not confine speech in this way without showing
its restrictions are narrowly tailored to serve a significant
interest. But the animal rights activists challenging the policy
have conceded that the Arena’s concourse is a nonpublic
forum, a space which the government may reasonably reserve
for its intended purpose. As the concourse’s function is to
facilitate movement of pedestrians into and out of the Arena,
we cannot find unreasonable a policy sensibly designed to
minimize interference with that flow. Accordingly, we will
reverse the District Court’s order because the policy is
constitutional. But because the government has not met its
burden to show the other two policies at issue—bans on
profanity and voice amplification—are reasonable, we will
affirm the court’s injunction of those policies.

                               I.

                              A.

       Defendant Luzerne County Convention Center
Authority owns the Mohegan Sun Arena, a large event space
in Wilkes-Barre, Pennsylvania. The Arena—which holds up to




                               3
10,000 people—hosts athletic and other commercial
entertainment events, including national touring acts like the
circus, concerts, Disney on Ice, and World Wrestling
Entertainment. Though the Arena is publicly owned, it
operates as a business that must earn enough to pay its
expenses. The Authority contracts with Defendant SMG to
manage the Arena’s day-to-day operations.

       The Arena building is set back from the public road and
surrounded by several large parking lots. Patrons attending
events at the Arena drive from the public road onto an access
road, park in one of the lots, and then walk to the Arena’s
entrances. This is the only way to access the Arena, as it is
separated from the public road by a grass median and fence. A
large concrete concourse connects the parking lots to the
Arena. The concourse houses two entrances for the Arena’s
patrons, termed the “East Gate” and “West Gate,” and includes
a pathway between the two gates.1 The concourse is generally
open to the public but primarily used by patrons attending
Arena events.

       Under the Arena’s protest policy, “[a]ll persons are
welcome to express their views” at the Arena. App. 400. The
Arena’s policy imposes several limits on protest activity, three
of which are at issue here. First, protesters must stand within
“designated area[s]” on the concourse and “[h]andouts can
only be distributed from within” those areas (the “location
condition”). 

areas are two “rectangular

1
       The part of the concourse in front of the East Gate
measures 18,746 square feet, the area in front of the West Gate
measures 10,560 square feet, and the sidewalk connecting the
two is 321 feet long and 30 feet wide.




                               4
enclosure[s] constructed from bike racks” that are 500 to 700
square feet and set up on the concourse next to the East and
West Gates. Pomicter v. Luzerne Cty. Convention Ctr. Auth.,

, 565 (M.D. Pa. 2018) (hereinafter
Pomicter II). Second, the policy bans protesters from using
profanity and “promotional verbiage suggesting vulgarity or
profanity” (the “profanity ban”). App. 400. Finally, the protest
policy prohibits any artificial voice amplification (the
“amplification ban”). 

2016, Silvie Pomicter and Last Chance for Animals
(LCA) sued the Authority and SMG, contending the Arena’s
protest policy infringes their free speech rights. In a facial
challenge, they allege the policy violates the First Amendment
of the United States Constitution and Article I of the
Pennsylvania Constitution.2 Pomicter—who, along with LCA,

2
        Plaintiffs bring their federal constitutional claims
pursuant to 42 U.S.C. § 1983, which “provides a remedy for
deprivations of rights secured by the Constitution and laws of
the United States when the deprivation takes place under color
of any statute, ordinance, regulation, custom, or usage, of any
State or Territory.” Pomicter v. Luzerne Cty. Convention Ctr.
Auth., No. 16-632, 

, at *4 (M.D. Pa. Apr.
27, 2016) (hereinafter Pomicter I) (quoting Lugar v.
Edmondson Oil Co., 

, 924 (1982)). In ruling on
Plaintiffs’ motion for a preliminary injunction, the trial court
found that the Authority was “a public governmental entity
acting under color of state law” and that SMG, though
nominally a private entity, was a “‘willful participant in joint
activity’ with the Authority and thus qualifie[d] as a state




                               5
opposes the use of animals by circuses—had protested at past
circus performances at the Arena, and she alleged her
confinement to the enclosures limited her ability to
communicate with patrons. Plaintiffs sought declaratory and
injunctive relief prohibiting Defendants from enforcing the
location condition, the profanity ban, and the amplification
ban.

        Immediately after filing their complaint, Plaintiffs
moved for a preliminary injunction challenging the location
condition only. They planned to protest at upcoming circus
performances at the Arena and sought to protest and distribute
leaflets outside the designated areas. After holding an
evidentiary hearing, the District Court granted Plaintiffs’
motion in part, finding the location condition “unreasonable ‘in
light of the characteristic nature and function’ of the Arena.”
Pomicter I, 

, at *5 (quoting United States v.
Kokinda, 

, 732 (1990)). It crafted a less restrictive
policy in its injunction. The injunction allowed up to twenty
protesters to distribute literature and talk to patrons within a
circumscribed section of the concourse,3 but protesters could
not approach anyone in line or otherwise “block the ingress or
egress of patrons.” App. 107.


actor.” 

457 U.S. at 941). Defendants do not
challenge these correct gateway determinations on appeal.
3
       The Court noted the concourse comprises two distinct
sections. The “entry bridge”—the 37 feet surrounding each
entrance gate—is a light concrete, and the 60 feet between the
entry bridge and the parking lot is a darker shade. Pomicter I,

, at *2. The injunction did not permit
protesting in the entry bridge or the first six feet of the dark
concrete from the parking lots.




                               6
       Plaintiffs protested under the terms of the preliminary
injunction at circus performances at the Arena in 2016 and in
2017. The Court later held a bench trial. Pomicter testified that,
during the circus protest in 2016, twelve protesters left the
designated areas to protest on the concourse. They were able
to distribute far more literature than the protesters in the
designated areas, who attracted little attention from patrons.
Plaintiffs also introduced videos of the protest, which showed
mainly nonconfrontational interactions between patrons and
protesters, with no abnormal congestion created on the
concourse.4

       While Plaintiffs focused on the circus protests under the
terms of the injunction, Defendants emphasized that the policy
was designed to deal with the range of potential groups that
may protest at the Arena. Brian Sipe, the Arena’s General
Manager, testified that, while Plaintiffs were not unruly
protesters, the Arena expected other groups may be less
cooperative. Because the Arena may not be able to effectively
manage protesters outside the designated areas, the location
condition minimizes congestion and security risks, and allows
law enforcement to more easily control crowds at the Arena.

        The District Court ruled in favor of Plaintiffs and found
all three restrictions violated the First Amendment.5 As to the

4
       The videos were only taken before Arena events as
patrons were entering; there were no videos showing traffic
flow as patrons exited the Arena.
5
       In addition, because “[t]he corresponding Pennsylvania
constitutional provision ‘provides protection for freedom of
expression that is broader than the federal constitutional




                                7
location condition and amplification ban, the Court discounted
Defendants’ proffered explanations for the policies, finding
them speculative and unreasonable. See Pomicter II, 322 F.
Supp. 3d at 571. As to the profanity ban, the Court held it
“unreasonably singles out First Amendment activity by
imposing” the ban “on protesters alone.” 

It entered
judgment for Plaintiffs and enjoined Defendants from
enforcing the three restrictions, though it noted more carefully
crafted restrictions may be permissible.6 Defendants now
appeal.7



guarantee[,]’” the court held the restrictions were also
“unreasonable under Pennsylvania law.” Pomicter II, 322 F.
Supp. 3d at 567 (quoting Pap’s A.M. v. City of Erie, 

, 605 (Pa. 2002)) (second alteration in original).
6
       Plaintiffs moved to amend the judgment because the
Court’s opinion and injunction did not specifically address
whether protesters could carry signs outside the enclosures.
The Court issued a supplemental opinion and order holding
Defendants could not confine protesters with signs to the
designated areas. According to the Court, “the reasoning of
permitting leafletting activity applies with equal force to the
act of carrying signs and picketing.” Pomicter v. Luzerne Cty.
Convention Ctr. Auth., No. 16-632, 

, at *4
(M.D. Pa. May 22, 2018).
7
       The District Court had jurisdiction under 28 U.S.C. §§
1331 and 1367. We have jurisdiction under 28 U.S.C. § 1291.
On appeal from a bench trial, our Court “reviews a district
court’s findings of fact for clear error and its conclusions of
law de novo.” VICI Racing, LLC v. T-Mobile USA, Inc., 

, 282–83 (3d Cir. 2014). We review an order granting
injunctive relief for abuse of discretion. Alpha Painting &




                               8
                               II.

        The First Amendment, applied to state and local
governments through the Fourteenth Amendment, prohibits
laws and regulations “abridging the freedom of speech.” U.S.
Const. amend. I. As noted, the Arena’s protest policy confines
all protest activity to the designated enclosures, in addition to
banning profanity and artificial voice amplification. Our
precedent is clear that these restrictions implicate protected
speech. See Brown v. City of Pittsburgh, 

, 269 (3d
Cir. 2009) (“[L]eafletting, sign displays, and oral
communication . . . are indisputably protected forms of
expression.”) (internal quotation marks omitted); Startzell v.
City of Philadelphia, 

, 199 n.10 (3d Cir. 2008)
(“[A]mplified speech, such as through the use of bullhorns, is
protected expression.”).

       Protected speech is not immune from regulation. See
Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 

, 799 (1985) (“Even protected speech is not equally
permissible in all places and at all times.”). The forum in which
the speech takes place governs what regulation is permissible,
and, in a nonpublic forum like the concourse here, protected
speech is subject to reasonable regulations.

                               A.

      In assessing the Authority’s restriction on protected
speech, we are guided by the forum analysis, which serves “as


Constr. Co. v. Del. River Port Auth. of Pa. & N.J., 

, 683 (3d Cir. 2017).




                               9
a means of determining when the Government’s interest in
limiting the use of its property to its intended purpose
outweighs the interest of those wishing to use the property for
other purposes.” 

(quoting 

). Under this framework, “the extent to which
the Government can control access depends on the nature of
the relevant forum.” Id. (quoting 

).
On one side of the spectrum is a public forum, property that
“has been traditionally open to the public for expressive
activity, such as public streets and parks.” 

spaces,
“the rights of the state to limit expressive activity are sharply
circumscribed.” United States v. Marcavage, 

,
279 (3d Cir. 2010) (quoting Perry Educ. Ass’n v. Perry Local
Educators’ Ass’n, 

, 45 (1983)). Time, place, and
manner restrictions must be content neutral and narrowly
tailored, while content-based restrictions must meet the even
higher bar of being the least restrictive means of achieving a
compelling government interest. 

public
forums—property “which the state has opened for use by the
public as a place for expressive activity”—restrictions on
speech are examined the same way. Perry Educ. 

.8

       In nonpublic forums—government property that is not
dedicated to First Amendment activity—the government has
more “flexibility to craft rules limiting speech.” Minn. Voters

8
       The Supreme Court has made clear that “[t]he
government does not create a public forum by inaction or by
permitting limited discourse, but only by intentionally opening
a nontraditional forum for public discourse.” 

(citation omitted).




                               

. Mansky, 

, 1885 (2018). Although it “does
not enjoy absolute freedom from First Amendment
constraints,” 

, “the government, ‘no
less than a private owner of property,’ retains the ‘power to
preserve the property under its control for the use to which it is
lawfully dedicated,’” Minn. Voters 

(quoting Adderley v. Florida, 

, 47 (1966)). This is
because “[n]othing in the Constitution requires the
Government freely to grant access to all who wish to exercise
their right to free speech on every type of Government property
without regard to the nature of the property or to the disruption
that might be caused by the speaker’s activities.” 

473 U.S. at 799–800). Rather, the government may
reserve a nonpublic forum “for its intended purposes,
communicative or otherwise, as long as the regulation on
speech is reasonable and not an effort to suppress expression
merely because public officials oppose the speaker’s view.” 

Educ. 

). In a nonpublic
forum, speech restrictions need only be reasonable, “a much
more limited review” than applied in public forums. Int’l Soc’y
for Krishna Consciousness, Inc. v. Lee, 

, 679
(1992).

       Here, the relevant forum, or the “specific public
property that [Plaintiffs] seek[] to access,” is the concourse
outside the Arena. NAACP v. City of Philadelphia, 

, 442 (3d Cir. 2016). Plaintiffs concede in this suit that the
concourse is a nonpublic forum. “The question whether a
particular [property] is a public or a nonpublic forum is highly
fact-specific and no one factor is dispositive.” 

. In the absence of evidence and argument to the
contrary, we accept Plaintiffs’ concession that the concourse is
being used at present as a nonpublic forum. Cf. United States




                               11
v. Bjerke, 

, 649 (3d Cir. 1986) (holding walkways
“not dedicated to serve the traditional functions of streets or
parks, but rather for the particular function of accommodating
post office patrons on official business,” were a nonpublic
forum); Int’l Soc’y for Krishna Consciousness, Inc. v. N.J.
Sports & Exposition Auth., 

, 161 (3d Cir. 1982)
(reasoning that “commercial” nature of sports complex made it
a nonpublic forum). We caution, however, that a public arena
and its entranceway may not always be treated this way. If
there was evidence showing, for example, that the concourse
was “used for purposes of assembly, communicating thoughts
between citizens, and discussing public questions,” our
analysis would be different. Perry Educ. 

(quoting Hague v. CIO, 

, 515 (1939)); cf. Paulsen
v. Cty. of Nassau, 

, 70 (2d Cir. 1991).9

       As noted, speech restrictions in nonpublic forums must
be reasonable in light of the purpose served by the forum and

9
        We also emphasize that Plaintiffs bring a facial
challenge, where we must assess whether the policy is
“unconstitutional in all of its applications.” Wash. State
Grange v. Wash. State Republican Party, 

, 449
(2008). Plaintiffs’ challenge here is limited to the Arena’s use
as a nonpublic forum. If the speech restrictions pass muster
under the reasonableness analysis, they cannot be facially
invalid. But that is not to say that the restrictions are
constitutional in every application. Though Plaintiffs don’t
raise the point, the District Court noted that the Arena has
hosted political events and rallies in the past. If an as-applied
challenge were raised in this context, both our reasoning and
conclusion could be different. But as noted, Plaintiffs conceded
this is a nonpublic forum.




                               12
viewpoint neutral. There is no claim that the Arena’s protest
policy discriminates based on viewpoint or that it is enforced
in a discriminatory way. Accordingly, we must examine
whether the policy is “reasonable in light of the purpose served
by the forum.” 

(citation omitted).

                              B.

        Because of the importance of the interests protected by
the First Amendment, the government bears the burden to
show its speech restrictions are reasonable. See 

. But unlike in public forums, the government’s
“burden to establish reasonableness” in nonpublic forums “is a
light one.” 

Since the “flexibility” afforded to the
government in these settings is justified by the government’s
ability to preserve property for its intended uses, Minn. Voters

, the government must provide a
legitimate explanation for the restriction in “light of the
purpose of the forum and all the surrounding circumstances,”

. To be “legitimate,” the
government’s explanation must be supported by either record
evidence or “commonsense inferences” based on the record.

. Once this requirement is met, though,
we give the government latitude to devise appropriate
regulations. “Even if more narrowly tailored regulations could
be promulgated,” the government “is only required to adopt
reasonable regulations, not ‘the most reasonable or the only
reasonable’ regulation possible.” 

–36
(quoting 

).

      For instance, in a case similar to the one now before us,
we reviewed a policy prohibiting solicitation and leafletting at
the Meadowlands sports complex. See N.J. 

161. We rejected a challenge by plaintiffs who sought
simultaneously to solicit donations and distribute literature at
the race track and arena.10 Among other justifications for the
policy, the government explained solicitation “would compete
with the Authority for its patrons’ money and disrupt the
normal activities of the complex.” 

that the
Meadowlands was a commercial venture expected to generate
revenue, we determined “it is not unreasonable for the
Authority to prohibit outside groups from engaging in
activities which are counterproductive to its objectives.” 

was certainly possible to conceive of more limited
or carefully tailored restrictions than an absolute ban on
solicitation—such as restrictions prescribing the time or place
when solicitation is permitted—we did not require the
government to take such steps. Because the restriction was
reasonably explained in light of the purpose of the forum, it
was constitutional.

        The flexibility of the reasonableness standard also
empowers the government to act prophylactically. In Perry
Education Ass’n v. Perry Local Educators’ Ass’n, for instance,
the Supreme Court considered a school district policy that
allowed the bargaining representative teacher’s union—but not
its rival—access to an internal mail system. 

.
Stressing the flexibility afforded to the government when
dealing with a nonpublic forum, the Court held the policy “may
reasonably be considered a means of insuring labor-peace
within the schools.” 

Even though there was “no

10
       Although the cases are similar, the result in New Jersey
Sports does not dictate our outcome here. “Reasonableness is
a case-specific inquiry, meaning that previous examples are of
limited usefulness.” 

.




                              14
showing in the record of past disturbances” or “evidence that
future disturbance would be likely,” there is no “require[ment]
that such proof be present to justify the denial of access to a
non-public forum on grounds that the proposed use may disrupt
the property’s intended function.” 

n.12. As the Court
has emphasized, “the Government need not wait until havoc is
wreaked to restrict access to a nonpublic forum.” 

.

        “[A]lthough the government does not need to prove
that a particular use will actually disrupt the ‘intended
function’ of its property,” in NAACP we reiterated that the
record must contain enough “information from which we can
draw an inference that would support” the speech 

(quoting 

(O’Connor, J.,
concurring)). There, we held the Philadelphia Airport’s ban on
noncommercial content in its advertising space was not
reasonable because the city’s explanations were belied by the
record. The city first contended the policy was intended to
promote revenue maximization. We concluded this was not a
legitimate explanation because the record lacked any support
to connect the ban to this goal; the city’s representative testified
the ban was not intended to promote revenue and instead cost
the city money. 

Commonsense inferences could
not fill the gap, as we would not accept a justification
disclaimed in the city’s testimony. 

The city next
sought to justify the ban as a way to avoid controversy,
pointing to testimony about efforts to make the Airport a
pleasant place for travelers. 

But that explanation
was inconsistent with the record evidence relating to the
overall nature of the forum, which showed an “onslaught of
noncommercial content” throughout the Airport. 

We
refused to credit an “inference that [the Airport] would devote




                                15
its advertising space to a purpose to which the rest of the
Airport does not subscribe.” 

though the government faces a “relatively low
bar” to show reasonableness in a nonpublic forum, its speech
restrictions are still subject to limitation: it may not offer
justifications unsupported by the record. 

The record
must allow us to “grasp the purpose” of the forum and,
critically, understand how the speech activity at issue may
disrupt that purpose. 

see also New England Reg’l
Council of Carpenters v. Kinton, 

, 20 (1st Cir. 2002)
(describing reasonableness review as a “fact-intensive” inquiry
considering “the uses to which the forum typically is put,” the
“risks associated with the speech activity,” and the “proffered
rationale”); Hawkins v. City & Cty. of Denver, 

,
1290 (10th Cir. 1999) (same). If the restrictions are reasonably
explained, accord with the evidence or commonsense, and are
connected to the purpose of the forum, we are constrained to
be lenient in our review.

                              III.

       In NAACP, we organized the reasonableness analysis
into two steps, which will guide our analysis here. “First, given
that reasonableness ‘must be assessed in the light of the
purpose of the forum and all the surrounding
circumstances,’” we consider the purpose of the forum.

(quoting 

).
Second, we assess whether Defendants have provided a
legitimate explanation related to the purpose of the forum and
supported by “evidence or commonsense inferences” for the
three restrictions at issue here. 

       We first consider the purpose of the forum. As noted,
the relevant forum, or the specific space Plaintiffs seek to
access, is the concourse outside the Arena. Record evidence or
commonsense inferences must show “the purpose to which the
[government] has devoted the forum.” 

focus on
the concourse, this “does not mean . . . that [we] will ignore the
special nature and function” of the Arena—which, as we’ve
described, is a large commercial event space—“in evaluating
the limits that may be imposed” on protest activity on the
concourse. 

–02; see also 

.

        Defendants contend, and the record confirms, that the
concourse is dedicated to a single purpose: providing for the
passage of patrons into and out of the Arena. Customers
attending events at the Arena park in the parking lots and walk
to the concourse, which provides a pathway for them to enter
and exit through the Arena’s two gates. Sipe testified that the
concourse was constructed so that “patrons, after they’re done
parking their car, can enter into the facility.” App. 281. He
confirmed that “thousands of people enter[] and exit[] the
building in a very short period of time” before and after events,
and the concourse is the only way they may do so. App. 121.
And because the concourse is next to the parking lot, it is
important that the areas immediately abutting the lot remain
clear to prevent “backing people up into the traffic area.” App.
478.

                               B.




                               17
        With the forum’s purpose and circumstances in mind,
the second step is to assess whether Defendants have
“provide[d] a legitimate explanation for” each of the three
challenged restrictions. 

. As we have
explained, record evidence or commonsense inferences “must
provide a way of tying the limitation on speech to the forum’s
purpose.” 

will examine the record
evidence about the three restrictions and assess each restriction
“in light of the characteristic nature and function” of the forum.

(quoting Heffron v. Int’l Soc’y for
Krishna Consciousness, Inc., 

, 651 (1981)).

                                1.

       We begin with the location condition, which requires
protesters to stand within designated areas on the concourse
next to the Arena’s two entrance gates. According to
Defendants, the primary purpose of that restriction is to
maintain the orderly and safe movement of patrons into and out
of the Arena. Sipe testified that allowing protesters to freely
interact with patrons could impede traffic flow as patrons enter
and exit the Arena. In addition, face-to-face interactions could
create security risks if a patron disagreed with the protester’s
message. Finally, he testified that enclosing the protesters to
the designated areas gives security officers “an easier time with
crowd control.” App. 287. He explained it would be difficult
to monitor the protesters if they were allowed free access to the
concourse, and the Authority may need to hire additional
guards to ensure protesters are adhering to the policy and to
prevent altercations.11

11
       Sipe testified that, during the circus protests that took
place under the terms of the preliminary injunction, he hired




                               18
        In light of this testimony—as well as commonsense
inferences about the need to maintain crowd control on the
concourse—we conclude the location condition is reasonable.
In assessing Defendants’ interests, our focus is not only “the
disorder that would result from granting an exemption solely
to [Plaintiffs].” 

(quoting 

). We must also consider the potentially “much larger
threat to [Defendants’] interest in crowd control if all other
[protest groups] could likewise move freely.” 

452 U.S. at 653). Here, especially considering the
concourse’s limited purpose of facilitating the movement of
Arena patrons between the parking lots and gates, it is sensible
for the Arena to maintain a policy that minimizes congestion
and interference with the pedestrian flow. Cf. N.J. 

(concluding that “maintaining [pedestrian] traffic
and crowd control” justified solicitation ban, as solicitation
“impede[s]” the “necessary free movement” of thousands of
patrons “mov[ing] rapidly . . . through the parking lot and
stadium”) (citation omitted). The Arena’s related security and
safety concerns are also legitimate. It is not unreasonable to
anticipate disruption if protesters were allowed throughout the
concourse, particularly if a patron is confronted face-to-face by
a protester she or he finds aggressive or disagreeable.12 For


three additional security officers to assist with monitoring the
protesters.
12
       Indeed, the video evidence presented at trial showed one
minor confrontation between a patron and a protester at a 2016
circus performance. Pomicter 

. The
patron reacted negatively to the protesters’ message and
“raised his middle finger to [a] protestor.” 

ignored the incident, and the patron moved along. Pomicter




                               19
these reasons, we conclude the location condition is
reasonable.

       Plaintiffs’ counterarguments are unavailing in a
nonpublic forum, where our review is limited to
reasonableness. Plaintiffs contend that “the availability . . . of
other strategies” for addressing crowd control and safety
undermines Defendants’ explanation. Appellee’s Br. 31. While
allowing up to 20 protesters access to a limited area of the
concourse, as the District Court did, or creating buffer zones,
as Plaintiffs suggest, may be less restrictive, Defendants are not
required to narrowly tailor speech restrictions in a nonpublic
forum. Moreover, Defendants’ legitimate concerns about the
administrability of these more narrowly tailored restrictions
further support the reasonableness of the location condition.
Cf. 

(approving speech restriction in
part “because it would be administratively unmanageable if
access could not be curtailed in a reasonable manner”). And
although Plaintiffs stress that there is no evidence about past
congestion or security problems on the concourse, Defendants
do not need to prove that picketing and leafletting would
“actually disrupt the intended function of its property.”

(citation and quotation omitted).
Instead, as noted, Defendants are entitled to develop
prophylactic policies to avoid these risks rather than react after
they occur.


also testified that at protests “there’s always a few people
[who] will say something negative,” but she “just ignore[s] it.”
App. 239. Though we commend Pomicter and her fellow
protesters for not engaging with combative patrons, we agree
with Sipe’s concern that such confrontations have the potential
to escalate.




                               20
        Plaintiffs also contend that the “minimally intrusive
nature of leafletting”—as compared to solicitation—
distinguishes this case from other cases finding solicitation
bans reasonable. Appellees’ Br. 27. Plaintiffs rely primarily on
International Society for Krishna Consciousness v. Lee, where
the Supreme Court upheld a solicitation ban but rejected a
leafletting ban within airport 

. Justice
O’Connor’s controlling concurring opinion emphasized that
the government had offered no justification at all for banning
leafletting separate from banning solicitation. 

(O’Connor, J., concurring).13 In the absence of any
explanation, the Court could not infer that leafletting—which
it recognized was far less disruptive than solicitation—was
incompatible with the shopping mall–like “multipurpose
environment” of the terminal.14 

(O’Connor, J.,
concurring). Unlike in Lee, here Defendants have directly
explained that any protest activity outside the designated areas
could cause congestion or safety problems. While solicitation
may be more disruptive than picketing and leafletting, we
accept that these protest activities may also cause obstruction
and congestion. See N.J. 

(“Generally,

13
       As we have previously explained, “Justice O’Connor’s
concurring opinion in [Lee] . . . speak[s] for the Court” as to its
holding that the leafletting ban was unconstitutional. 

–45.
14
       The context for this finding is important. Lee was
decided in 1992, a time when airport terminals were “generally
accessible to the general public.” 

. At these
terminals, members of the public could go to “various
commercial establishments such as restaurants, snack stands,
bars, newsstands, and stores of various types.” 

need to maintain public order justifies greater restrictions
on active conduct such as picketing . . . .”) (citation omitted).
The concourse is also a different forum from the airport
terminals in Lee, which hosted “a wide range of activities” and
“extensive, nonforum-related 

, 691
(O’Connor, J., concurring). Here, the forum has a single
purpose: facilitating the entry and exit of patrons to the Arena.
The location condition, intended to minimize any interference
with the safe flow of patrons, is closely connected to that
purpose. Cf. 

–91 (concluding a
leafletting ban in a theater entryway is reasonable because of
“risk of congestion” and the limited purpose of the forum).
Finally, we note Justice O’Connor concluded by stipulating she
would find reasonable a policy confining leafletting to a
“relatively uncongested part of the airport terminals.” 

. As this adjustment resembles the “designated
areas” used by the Arena, it further supports our decision to
uphold the location condition.

       Our conclusion that the Arena’s location condition is
reasonable should not be mistaken to suggest that it is an
insignificant burden on speech. Plaintiffs would be on strong
footing and may very well prevail were this a public forum,
where the narrow tailoring requirement “demand[s] a close fit
between ends and means.” McCullen v. Coakley, 

,
486 (2014); see also Turco v. City of Englewood, --- F.3d ---,

, at *4 (3d Cir. Aug. 19, 2019). But for
nonpublic forums the Supreme Court has made clear there is
no “requirement that [a] restriction be narrowly tailored.”

. In these circumstances, because
Defendants have met their “light” burden to show the location
condition is reasonable in light of the purpose of the concourse,
we cannot require more. See 

.




                               22
                               2.

        We next consider the profanity ban, which specifically
prohibits the “[u]se of profanity” by protesters, as well as
“[a]ny promotional verbiage suggesting vulgarity or
profanity.” App. 400. Defendants’ justification for this
restriction is that “customers of the Arena should not be
subjected to profane or vulgar language when attending a
sports or entertainment event at the Arena.” Appellants’ Br. 36;
see also App. 277. In determining whether the profanity ban is
reasonable, we are guided by our opinion in NAACP, 

. As noted, the Philadelphia Airport explained its ban on
noncommercial advertising as part of its efforts to create a
pleasant environment within the entire Airport. But this
explanation was inconsistent with the environment of the
Airport; we observed that there was an “onslaught” of
noncommercial, controversial content throughout the Airport.

Because there was “little logic” to the inference that
the city “would devote its advertising space to a purpose to
which the rest of the Airport does not subscribe,” we concluded
the ban on noncommercial advertising alone was not
reasonable. 

the same analysis and reach the same result
here. Defendants’ explanation for the speech restriction is that
they don’t believe customers should be subjected to profanity
or vulgarity while attending Arena events. To determine if this
is a valid restriction, we must consider whether it is consistent
with “the atmosphere” at the Arena. 

that
the policy applies only to protesters, and there appears to be no
similar ban or restrictions for patrons, staff, or others on the
concourse. The restriction likewise does not apply within the
Arena itself; there is no equivalent ban that applies to




                               23
performers or athletes that are part of Arena events. Though
Defendants’ goal may be legitimate, their means of achieving
it is not. They cannot meet their goal by singling out protesters
on the concourse. Accordingly, like the policy at issue in
NAACP, we cannot conclude the Arena’s internally
inconsistent profanity ban, applied exclusively to protesters, is
reasonable.


                                3.

        Finally, we turn to the artificial voice amplification ban.
Defendants offer two explanations for the policy: first, that
voice amplification could “interfere” with other activity at the
Arena, such as announcements, “commercial vendors present
on the premises,” or “the event inside the Arena”; and second,
that it would “annoy the patrons as they enter and exit the
building.” Appellants’ Br. 35. Because Defendants have not
met their burden to establish the ban is reasonable in light of
the purpose of the forum, we agree with the District Court that
the amplification ban is unconstitutional on this record.

        At trial, Sipe briefly testified about the potential
interference caused by voice amplification. He said the Arena
is “installing” a “sound system . . . that’s playing some arena
policies for guests.” App. 277. In addition, the Arena
“sometimes” has shows that sell merchandise outside the
Arena, “so any voice amplification that would be louder than
theirs would . . . inhibit that sale.” App. 276. Finally,
amplification “could potentially, if it’s loud enough, interfere
with what’s going on inside the venue.” App. 277. This limited
testimony appears to be the extent of the record about the
Arena’s amplification ban. The District Court found that this




                                24
evidence was not enough to warrant a blanket ban, and instead
in its final order allowed the Arena to promulgate a “rule that
may restrict protesters from using voice amplification in
specified contexts, in order to prevent potential interference
with other permitted activities within the Arena.” App. 44. We
agree with the Court’s well-reasoned decision.

       Our opinion in NAACP makes clear that it is the
government’s burden to provide a legitimate “explanation as to
why certain speech is inconsistent with the intended use of the

(quoting 

–92
(O’Connor, J., concurring)). The explanation must be
supported by record evidence, or the record must “contain[] . .
. information from which we can draw an inference that would
support” the explanation. Id. (quoting 

(O’Connor, J., concurring)). Either way, “courts must have
some way of evaluating restrictions.” 

brief and
equivocal references in Sipe’s testimony are not enough to
provide a basis for us to assess whether the restrictions are
reasonable.

        Sipe’s description of the Arena’s sound system is
tentative and vague. Though Defendants can rely on the
purposes of the Arena more broadly in explaining speech
restrictions, they still must explain how the protected speech
would interfere with those purposes. As mentioned, Sipe
testified the Arena was “installing” a sound system, which
suggests it may not even be operational. And even assuming
the sound system is functional, there is no indication where the
sound system operates, how often announcements are made, or
how loudly the announcements are broadcast. Absent this type
of information, which would allow us to understand how voice
amplification might disrupt Arena announcements, we are not




                              25
willing to infer that amplification “is inconsistent with the
intended use of the forum.” 

(O’Connor,
J., concurring); see also 

(“[T]he
significance of the governmental interest must be assessed in
light of the characteristic nature and function of the particular
forum involved.”) (quoting 

–51).

       Sipe’s cursory mention of vendors at the Arena
similarly lacks substance. Again, the record lacks enough
information to support an inference that amplification is
inconsistent with the use of the forum. We are left to guess how
often vendors use the concourse, where on the concourse they
stand (including the proximity to the designated areas), and
whether they even use voice amplification in making sales.
And in any event, to the extent Sipe’s testimony is that artificial
voice amplification is permitted for vendors but prohibited for
protesters, we again run into the problem of the Arena’s
policies being applied unevenly against protesters. If
Defendants are concerned about amplification interfering with
Arena announcements, we do not see how permitting vendors
to use amplification is consistent with that purpose. See

.

       Moreover, if there is an operational sound system
playing policies for guests or vendors that use the concourse,
the District Court’s injunction allows the Authority to enforce
a policy that “restrict[s] protesters from using voice
amplification in specified contexts, in order to prevent
potential interference with other permitted activities within the
Arena.” App. 44. We hold that Defendants’ interests are




                                26
sufficiently protected by the Court’s order.15 The terms of the
injunction also mitigate any potential concern about
interference with events going on inside the Arena. The
Authority could, for example, prohibit amplification during (as
opposed to before and after) performances, which would easily
and effectively address this concern.16

       Defendants finally contend that banning voice
amplification is necessary to avoid annoying patrons of the
Arena. Unlike the other explanations, we find no mention of
this explanation in the record.17 Compounding the lack of
record support, Defendants do not even attempt to explain the
connection to the forum. They do not suggest that any
hypothetical annoyance would have repercussions for the flow
of pedestrian traffic or otherwise disturb the functioning of the
Arena. Though amplification may be annoying, absent any
connection to the purpose of the forum, this alone is
insufficient to justify the speech restriction. And in NAACP we
explained that “controversy avoidance” as a governmental

15
        We note that at oral argument, counsel for Defendants
could not think of a situation in which the Court’s order would
interfere with the Arena’s functioning or be problematic to
administer. Oral Arg. Recording at 6:45–7:53.
16
        The Authority could, alternatively, promulgate a policy
that sets a certain decibel limit for any amplification. Such a
restriction would be less prohibitive and allow the protesters’
message to reach a larger audience across the concourse, while
avoiding any potential interference with Arena activity.
17
        As far as we can tell from our review of the appendix,
this rationale was not raised at all during the trial and the
District Court therefore did not address it in concluding the
amplification ban was not reasonable.




                               27
objective is “nebulous and not susceptible to objective

. While it may sometimes be a
valid governmental objective, we cautioned against “readily
drawing inferences, in the absence of evidence, that
controversy avoidance renders [a] ban constitutional.” 

473 U.S. at 812). Here, faced with a lack of
record support demonstrating the justification for the ban or
connection to the forum, we will not make inferences to fill the
gaps and accordingly conclude the amplification ban is
unreasonable.

                              IV.

        In sum, we conclude that the Arena’s policy
sequestering protesters to designated areas satisfies the
reasonableness test for speech restrictions in nonpublic forums.
Accordingly, we will reverse the District Court’s order on this
issue and remand for the Court to consider whether the policy
passes muster under the Pennsylvania Constitution. Although
we reach this conclusion here, we again emphasize that under
other circumstances, if the nature of the forum were to change,
our analysis would be different. With respect to the Arena’s
protest policies banning profanity and artificial voice
amplification, however, we agree with the District Court that
Defendants have not met their burden to show that these
restrictions are reasonable in light of the purpose of the forum,
and we will therefore affirm.




                               28