ADF Alliance Alert

The United States Court of Appeals for the Third Circuit has upheld restrictions placed on the movements of members of Repent America in their protest of a Philadelphia PrideFest event. The case is captioned: Startzell v. Philadelphia, No. 07-1461 (3rd Cir., July 15, 2008). A unanimous panel ruling issued by Judges Sloviter, Smith, and Stapleton.  Judge Stapleton filed a concurring opinion.

The majority opinion summarizes the facts:

. . . The particular event that brings this issue before us was the October 10, 2004 OutFest, organized by Philly Pride Presents, Inc. (“Philly Pride”) to celebrate “National Coming OPut Day” on behalf of the lesbian, gay, bisexual, and transgendered community. The counter-protestors were members of Repent America led by Michael Marcavage, who entered the area assigned to OutFest with large signs, microphones, bullhorns, and musical instruments, seeking to proclaim their message that homosexuality is a sin. When the Marcavage group disobeyed a police directive to move to a less disruptive location, they were arrested. They then filed this suit, alleging federal and state law claims. Before us is the appeal from the decision . . .

Multiple claims were raised in the suit, but in connection with the First Amendment claim, the majority opinion concludes:

Therefore, we hold that the City’s actions in restricting Appellants’ movement when they were interfering with or disrupting the speech of the permitted event were justified, reasonable, content-neutral regulations of the time, place, or manner of their expression.

In his concurrence, Judge Stapleton writes:

. . .  Just like the street preacher in Gilles [427 F.3d 197 (3d Cir. 2005).], the members of the Repent America group started out by preaching their beliefs in a general sense to a crowd known to be hostile to their viewpoint. This was protected. They then singled out a transgendered individual for abuse, repeatedly calling him a “she-man,” telling him, “The mirror lied to you this morning. Your shadow is showing,” and by suggesting that his sexual identity would send him to hell. This was the functional equivalent of the preacher’s unprotected conduct in Gilles, and for that reason, I conclude that these statements amounted to “fighting words” that merited police intervention . . .

While I agree that the rights of the Repent America protesters were not violated, I cannot subscribe to the twin justifications offered by the Court for its resolution of this appeal, namely: (1) that there is a First Amendment right to speak without interruption; or (2) that OutFest’s permit provided a basis for the police to limit or end Repent America’s protest . . .

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