Font Size: 
3rd Circuit Upholds Removal of Christian Protesters at Gay Pride Event
The Legal Intelligencer
July 17, 2008
In a closely watched First Amendment case stemming from a clash between a group of Christian protesters and the attendees of a gay pride event, the 3rd U.S. Circuit Court of Appeals has ruled that Philadelphia police acted properly in removing the protesters because they were disrupting the event with bullhorns and disobeying police orders to move.
"The right of free speech does not encompass the right to cause disruption, and that is particularly true when those claiming protection of the First Amendment cause actual disruption of an event covered by a permit," U.S. Circuit Judge Dolores K. Sloviter wrote in Susan Startzell, et al. v. City of Philadelphia, et al.
"When protesters move from distributing literature and wearing signs to disruption of the permitted activities, the existence of a permit tilts the balance in favor of the permit-holders," Sloviter wrote.
Sloviter found that a video of the event showed that the anti-gay protesters, led by Michael Marcavage of Repent America, "used bullhorns and microphones in an attempt to drown out the platform speakers" at the 2004 OutFest celebration.
As a result, Sloviter said, the police had "ample justification" to direct the protesters to move when they interfered with OutFest's permitted activities, blocked access to vendors who had applied for booths and directly confronted a transgender woman.
"The city has an interest in ensuring that a permit-holder can use the permit for the purpose for which it was obtained. This interest necessarily includes the right of police officers to prevent counter-protesters from disrupting or interfering with the message of the permit-holder," Sloviter wrote in an opinion joined by U.S. Circuit Judge D. Brooks Smith.
In a concurring opinion, Senior U.S. Circuit Judge Walter K. Stapleton said he disagreed with some of Sloviter's analysis and that he would have upheld the dismissal of the suit on different grounds -- that the protesters had engaged in "fighting words" that justified their removal from the event.
Stapleton found that the Repent America protesters "singled out a transgendered individual for abuse," repeatedly calling her a "she-man" and saying that her gender identity would send her "to hell."
"Once fighting words have been uttered," Stapleton said, "the police can intervene to the extent necessary to defuse the situation and prevent a breach of the peace. The response of the police in this instance was reasonably calculated to accomplish that legitimate objective."
But Stapleton said he disagreed with Sloviter's analysis because it was premised on the notion "that there is a First Amendment right to speak without interruption" and that OutFest's permit provided a basis for the police to limit or end Repent America's protest.
Sloviter was correct, Stapleton said, in holding that Repent America "had just as much right to be present at the festival" and that "OutFest's pro-gay message and Repent America's anti-gay message were both protected speech."
But Stapleton said he could not join Sloviter's opinion because it failed "to explain satisfactorily why, in the absence of 'fighting words' or their equivalent, the police in such a situation have the ability to favor one side over the other by requiring the disfavored side to relocate to the periphery of the festival."
The 3rd Circuit's decision upholds a ruling by U.S. District Judge Lawrence F. Stengel that dismissed a civil rights suit brought by 11 members of Repent America who claimed the police violated their rights and falsely arrested them.
But the appellate court rejected some of Stengel's reasoning.
Stengel had ruled that the organizers of OutFest had the right to exclude the protesters. Ironically, Stengel premised that ruling on the U.S. Supreme Court's 1995 decision in Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston which held that a gay group had no right to join in the St. Patrick's Day parade.
In Hurley, the justices found that an order mandating that the gay group be allowed to march in the parade violated the parade organizers' First Amendment right of autonomy and that free speech rights include the right to exclude messages that the speaker disagrees with.
Applying Hurley, Stengel concluded that "once the city issued a permit to Philly Pride for OutFest, it was empowered to enforce the permit by excluding persons expressing contrary messages."
Sloviter disagreed, saying Hurley was not a case about protesters, but coerced speech, and that the Repent America plaintiffs presented a different legal question because they were "dissenting speakers" who wanted to promote a competing message on the streets and sidewalks -- a place that Sloviter described as "an undisputed quintessential public forum."
Stengel erred, Sloviter said, "in extending Hurley to allow Philly Pride to exclude [the Repent America protesters] from the public streets occupied by OutFest" because there was "no danger" that their speech would be confused with the organizers' gay pride message.
Assistant City Solicitor Jane L. Istvan said the ruling was a "total vindication" of the city's legal positions and the conduct of the police officers.
"The court found that the city and the police understood everyone's rights and respected them," Istvan said.
The protesters' lawyer, Lloyd T. "Ted" Hoppe Jr. of Shields & Hoppe in Media, Pa., said he was disappointed that the court did not allow the case to go to the jury because some of the facts relied on by the court were in dispute.
Hoppe said no decision has yet been made about whether to pursue the case further, either by seeking an en banc reargument before the 3rd Circuit or petitioning the U.S. Supreme Court.
Attorney Jeremy D. Frey of Pepper Hamilton, who argued the case on behalf of the OutFest organizers, said the ruling was an important one because "it helps define the First Amendment rights of permit holders to express their message without disruption or interference from others."
