Startzell v. City of Philadelphia, Pennsylvania

• Decision Date: 15 July 2008
• Docket Number: No. 07-1461.,07-1461.
• Citation: 533 F.3d 183
• Parties: Susan STARTZELL; Nancy Major; James Cruse; Gerald Fennell; Randall Beckman; Linda Beckman; Michael Marcavage; Mark Diener; Dennis Green; Arlene Elshinnawy; Lauren Murch, a minor, by and through her parent and next friend, Beverly Murch, Appellants v. CITY OF PHILADELPHIA, PENNSYLVANIA; Lynne Abraham, In Her Official Capacity as District Attorney for the City and County of Philadelphia; William V. Fisher, In His Official and Individual Capacity; James Tiano, In His Official and Individual Capacity; Karen Simmons, In Her Official and Individual Capacity; Philly Pride Presents, Inc.; Charles F. Volz, Jr.; Fran Price; Donna Marcus, Assistant District Attorney; The Philadelphia District Attorney's Office.
• Court: U.S. Court of Appeals — Third Circuit

533 F.3d 183

Susan STARTZELL; Nancy Major; James Cruse; Gerald Fennell; Randall Beckman; Linda Beckman; Michael Marcavage; Mark Diener; Dennis Green; Arlene Elshinnawy; Lauren Murch, a minor, by and through her parent and next friend, Beverly Murch, Appellants v. CITY OF PHILADELPHIA, PENNSYLVANIA; Lynne Abraham, In Her Official Capacity as District Attorney for the City and County of Philadelphia; William V. Fisher, In His Official and Individual Capacity; James Tiano, In His Official and Individual Capacity; Karen Simmons, In Her Official and Individual Capacity; Philly Pride Presents, Inc.; Charles F. Volz, Jr.; Fran Price; Donna Marcus, Assistant District Attorney; The Philadelphia District Attorney's Office.

No. 07-1461.

United States Court of Appeals, Third Circuit.

Argued February 11, 2008.

Filed: July 15, 2008.

Amanda L.H. Brinton, Lloyd T. Hoppe, Jr., (Argued), C. Scott Shields, Shields & Hoppe, Media, PA, Attorneys for Appellants.

Jane L. Istvan, (Argued), City of Philadelphia Law Department, Jeremy D. Frey, (Argued), Pepper Hamilton, Philadelphia, PA, Attorneys for Appellees.

Before: SLOVITER, SMITH, and STAPLETON, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

The parties to the events surrounding the October 2004 OutFest have differing, indeed contrary, views of the protection that the First Amendment affords to organizers of events that generate counter-protests and the rights of those counter-protestors. Our task is to strike a balance between the rights of persons in those opposing positions, while at all times remaining true to the essence of the First Amendment.

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 Out 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 of the District Court granting the motions for summary judgment filed by defendants the City of Philadelphia, Police Captain William V. Fisher, Chief Inspector James Tiano, and Police Counsel Karen Simmons ("City," collectively),¹ and Philly Pride, Fran Price, Philly Pride's Executive Director, and Charles F. Volz, Jr., Philly Pride's volunteer OutFest Coordinator and Senior Advisor ("Philly Pride," collectively).

I. Background

A. Facts

Appellants are eleven Christians affiliated with an organization known as Repent America, which was founded by Appellant Michael Marcavage in 2002.² Appellants believe that homosexuality is sinful 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." App.II at 21. Appellants communicate their message through displaying signs, offering literature, and engaging in "open air preaching," which includes praying, singing, playing music, and talking to people about the Scriptures.

Philly Pride is a private, not-for-profit corporation that organizes lesbian, gay, bisexual, and transgendered ("LGBT") events, including Pride Day in June and OutFest in October. OutFest, an annual street festival organized by Philly Pride to celebrate "National Coming Out Day"³ and to affirm LGBT identity, took place on October 10, 2004. Events similar to OutFest are held annually in approximately thirty cities. Philadelphia has the largest celebration, attracting over 30,000 people. OutFest is held in Philadelphia's "Gayborhood," bordered by Walnut and Pine Streets at its north and south borders and Quince Street (between 11th and 12th Streets) and Juniper Street (between 13th and Broad Streets) at its east and west borders. Philly Pride had obtained a permit from the City of Philadelphia to close off the streets in which OutFest took place. The event included, inter alia, stages and dance areas, sport and amusement areas, a flea market, and paying vendors from various organizations. All the events were free and open to the public.

On prior occasions, specifically the SundayOut street festival on May 2, 2004 and the Philly Pride Parade on June 13, 2004, Appellants had attended gay pride events in order to express their anti-homosexual message. Because those events had been characterized by confrontations between the groups with opposing messages, Philly Pride anticipated that Appellants would seek to attend OutFest 2004, an anticipation supported by Marcavage's public announcement regarding OutFest. He was quoted in the Philadelphia Gay News as saying, "it's our hope that OutFest will come to an end." App.II at 89.

In advance of OutFest, Daniel Anders, counsel for Philly Pride, sent a letter to the Chief Deputy City Solicitor on September 15, 2004, in which he stated: "In a recent interview with the Philadelphia Gay News, Michael Marcavage of Repent America commented on Philly Pride's intention to keep Repent America out of the OutFest block party. Marcavage said, `We do what God is calling us to do. If it means breaking the law, we will do that.'" App. II at 332. Anders requested that "the City uphold Philly Pride's First Amendment rights to determine and maintain the expressive content of its own event ... [by] keep[ing] anti-LGBT protestors from accessing the permitted city blocks of the party during the hours specified on the permits issued" to Philly Pride. App.II at 330. Philly Pride made similar oral requests. The City rejected Philly Pride's request, because, as police counsel Karen Simmons explained in her deposition, "it's an open street event in the streets of Philadelphia and ... [Appellants] would be allowed in with their bull horns and with their signs and any way they want to come in, as long as they don't break any law...." App.II at 146.

After having its request to exclude Repent America from OutFest denied, Philly Pride informed the City that it intended to use volunteers to form a "human buffer" between anti-LGBT protestors and OutFest attendees. The volunteers ("Pink Angels"), wearing pink shirts, would blow whistles and carry large pink Styrofoam boards shaped like angels that would shield attendees from the signs carried by the protestors. The City took no position on the use of such a buffer, but told Philly Pride that it would make an on-site determination regarding the propriety and safety of such efforts.

On the morning of OutFest, October 10, 2004, Philadelphia Police Department's legal advisor, Karen Simmons, told police officers assigned to the event that they were there to protect everyone's First Amendment rights, including those of anti-LGBT protestors, and were to let the latter into the permitted area despite Philly Pride's requests to the contrary. The officers were also repeatedly told that, should any issue arise with respect to the protestors or the Pink Angels, they should not take any actions without first calling for supervision. Chief Tiano told the officers about Philly Pride's intention to create a human buffer zone through the use of the Pink Angels, which he commented could "cause a problem." Roll Call video.⁴

Appellants arrived at OutFest early in the afternoon of October 10, 2004, bringing with them bullhorns, large signs, literature, and the documentary film crew. See supra note 4. The signs displayed biblical messages, many of them proclaiming Appellants' view that homosexuality is a sin.⁵ It is of interest that the District Court noted that Christian community groups supported OutFest as well as other Philly Pride events. Upon the arrival of Appellants, Philly Pride's Pink Angels linked arms together and formed a human barrier to prevent them from entering the event. Appellants complained to the police, and within a few minutes the police ordered the Philly Pride volunteers to move so that Appellants could enter OutFest, threatening the Philly Pride volunteers with arrest if they did not comply. As Appellants were allowed to enter the permitted area, Captain Fisher, the commanding officer of the Civil Affairs Unit, told Appellant Marcavage that "we don't want any silliness." App.II at 277. According to Captain Fisher, he meant that he did not want Marcavage "to get into a situation where I have to save him and he started getting beat up or something." App.II at 278.

Appellants entered OutFest at 13th and Locust Streets, and began to convey their message about twenty yards away from the main stage, singing loudly, playing instruments, displaying large signs, and using microphones and bullhorns. The Pink Angels, who sought to prevent Appellants' preaching from being heard, surrounded them with their large Styrofoam signs and blow whistles. Once the musical program began on the main stage, Captain Fisher instructed Appellants to move farther up 13th Street so that they would not block the stage or interfere with its activities, noting that OutFest held a permit to hold a program on stage. Appellants then moved north for about one block on 13th Street toward Walnut Street, followed by the Pink Angels. At this point, Appellant Diener called a transgendered person a "she-man," saying through his bullhorn, "[t]he mirror lied to you this morning. Your shadow is showing." Startzell v. City of Philadelphia, No. 05-05287, 2007 WL 172400, at *3 (E.D.Pa. Jan. 18, 2007). The individual responded and Diener then warned, "[y]ou won't be preaching like this in hell, she-man." Id. Appellant Marcavage also told this individual that the problem was that "you are celebrating your sin. We're trying to celebrate Jesus." OutFest video.

Captain Fisher and legal cou...