3rd Circuit Upholds Arrest of Disruptive Protesters At OutFest

In Startzell v. City of Philadelphia, (3rd Cir., July 15, 2008), the U.S. 3rd Circuit Court of Appeals rejected claims by a members of a Christian group, Repent America, that their free speech rights were infringed when they were arrested by Philadelphia police for disorderly conduct and refusal to obey police orders at the gay pride OutFest in 2004. The court also rejected plaintiffs' equal protection, 4th Amendment and conspircacy claims. Repent America, founded by Michael Marcavage, believes that homosexuality is a sin and that "it is their duty to God to warn others about the destructiveness of sin through public proclamation of the gospel of Jesus Christ." The court's majority opinion by Judge Sloviter held:

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. 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-protestors from disrupting or interfering with the message of the permit-holder. Thus, when protestors 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.

Judge Stapleton concurring argued that police acted properly because police intervened only after a member of Repent America addressed "fighting words" to an OutFest participant. Yesterday's Legal Intelligencer reported on the decision. (See prior related posting.)