Anti-Homosexual "Repent America's" Lawsuit Against Philadelphia Gay Pride Organization

Thrown Out of Federal Court

Date: January 19, 2007
From: Philadelphia Gay Pride
Re: Repent America, Michael Marcavage

On January 19, 2007, U.S. District Judge Lawrence F. Stengel (Eastern District of Pennsylvania) granted a motion for summary judgment in favor of Philly Pride Presents (the gay pride organization for Philadelphia), executive director Fran Price and senior advisor Chuck Volz and against 11 members of the anti-homosexual group Repent America. This decision is a victory for free speech and recognizes the First Amendment right of organizations to control the message of their permitted events.

Outfest 2004 Arrests  
On October 10, 2004, 11 individuals identifying themselves as "Repent America" were arrested by the Philadelphia police department and charged with various offenses of the Pennsylvania criminal code for disrupting and harassing the individuals and vendors participating in Outfest 2004, Philadelphia's celebration of National Coming Out Day, the largest such celebration in the nation. Unlike previous years, the protesters were confronted with counter-demonstrators holding huge pink styroform "angels" and blowing whistles. Pride volunteers had formed a human chain to prevent their entrance. After some delay, and following a direct from the police to permit them to enter, the human chain was dismantled. The protesters interrupted the activities at the main stage and the police asked the group to move north on 13th Street

At this point the "pink angels" were formed around the demonstrators and whistles were sounded every time they attempted to speak on their bullhorns, both to protect the protesters from the angry crowd reaction and to prevent their angry and disruptive rhetoric from inciting the crowd. Contrary to their portrayal to the press that they were merely quoting the Gospel and singing religious songs, on three [3] separate occasions, a transgender female was berated on the bullhorn and told "your mirror lied to you this morning . . . you have a 5 o'clock shadow."

The protesters were clearly perplexed by the exercise of competing First Amendment rights and started to block two vendors on the east side of 13th Street. After protests were made to the police that the vendors had paid for their spaces and were prevented from conducting any activity by the presence of the demonstrators, the police asked the protesters to move north on 13th Street. The protestors stated that they wanted to move, but would only move south on 13th in the direction of the main stage. The police then gave the protesters a direct order to move, and, unlike the Pride volunteers who had obeyed the police directive given them, the protesters refused to move. They were arrested but criminal charges were later dismissed by a Philadelphia Common Pleas judge.

Federal Lawsuit  
In October of 2005, the Repent America protesters brought a federal lawsuit against Philly Pride, and personally against its executive director and senior advisor, as well as various police officials alleging, among other things, that the Philly Pride defendants had conspired with the City of Philadelphia to violate Repent America's First Amendment rights. The lawsuit was suspiciously timed to be served two days prior to Outfest 2005 and threatened to bankrupt the Philly Pride defendants with legal fees and potential judgments. Pepper Hamilton LLP (Jeremy D. Frey, Kevin P. Ray, and Sara A. Aliabadi) became pro bono counsel for Philly Pride and the individual defendants.

First Amendment right to exclude contrary message  
Federal District Court entered a 52 page opinion which dismissed all claims made against Philly Pride as well as the City of Philadelphia. Of crucial import to Philadelphia's gay pride organization, and gay pride groups throughout the United States confronted by anti-homosexual groups claiming religious and free speech protection to protest at gay events, was the court's clear and unequivocal holding that "Defendant Philly Pride had the right to exclude plaintiffs and their contrary message from their expressive, permitted event." The decision was primarily based on the United States Supreme Court's holding in Hurley v Irish-American GLB Froup of Boston (1995) that a private organization could not be compelled to include a group of LGB de-scendants of Irish immigrants in their annual St. Patrick's Day parade because the organizers had a right to exclude messages with which they did not agree. The Court recognized that it was essential to the protection of free speech rights to give an event organizer the right to shape the message of its event.

Federal District court held that the right to exclude contrary expressive activity was not limited to parades, but also applied to political rallies and street festivals:

"Outfest is an expressive, permitted event and the organizers of the event have a right to exclude those bearing contrary messages under Hurley. Outfest was first celebrated in 1990 in Philadelphia and has continued annually as a crowded street event. Outfest is held in conjunction with National Coming Out Day, which celebrates 'coming out' or the first step in the process of publically admitted one's homosexuality. The festival is designed to advance lesbian, gay, and bisexual rights by providing a positive and supportive environment for homo- sexuals, bisexuals, and transgendered individuals to come out. The event is held in the Gayborhood section of Philadelphia, which is the center of Philadelphia's gay community. Plaintiffs sought to communicate their own message that homosexuality is sinful in direct contrast to the message of Outfest, which aspires to create a nurturing environment for individuals to acknowledge their homosexual identity. Plaintiffs are in the same position as the lesbian, gay, and bisexual group that the Court excluded from the St. Patrick's Day Parade in Hurley, finding that the group 'seeks to communicate its ideas as part of the existing parade, rather than stage one of its own.' "

". . .Outfest is a street festival encompassing several city blocks. The 'expression' occurs in the streets throughout the event area inclusing stages, dance spots, and amusement areas, a family zone, and a flea market. There were also over one hundred vendors from for-profit and non-profit organizations lining the streets who sought to communicate with homosexual, bisexual, and transgendered attendees. Like the parade organizers in Hurley, the Philly Pride defendant had carefully composed an ensemble of organizations to communicate their overall pro-homosexual message. . . . there was no area within Outfest for the plaintiffs to stand and peacefully express their contrary message.

. . . facts that are not in material dispute show that the plaintiffs' interaction with the crowd was not peaceful. . . . . the plaintiffs did not just communicate passively with signs. The plaintiffs amplified their voices and spoke to the crowd and sang songs to communicate their message. Plaintiffs' attendance at Outfest cannot be classified as peaceful. One plaintiff communicated through incendiary language, including remarks that 'Jesus Christ's blood was not HIV positive' and 'that one transgendered participate would 'go to hell.' "

This decision is the first to clearly apply the Hurley doctrine to gay pride parades, festivals, and political rallies and give the gay pride organizations the right to control the expressive content of their events and exclude anti-homosexual protesters consistent with the First Amendment.