Legal Commentary

I have been meaning to write about this case from the Third Circuit for a month now. Startzell v. City of Philadelphia was a § 1983 action by members of Repent America (a religiously based anti-gay-rights organization), who staged a protest at Philadelphia's OutFest in 2004. Eight members were arrested when they disobeyed orders from police to move to a different location within the street fair (for which the organizers, Philly Pride Presents, had a non-exclusive use permit).

The court rejected plaintiffs' First Amendment claims, finding that the relocation order was content-neutral and permissible, because the plaintiffs: 1) had used bullhorns, thus interfering with Philly Pride's expression (by trying to drown it out), particularly the on-stage performances; 2) had aggressively confronted one transgendered individual ("The mirror lied to you this morning. Your shadow is showing."); and 3) had blocked access to vendors and booths. The court took pains to distinguish Parks v. City of Columbus, a Sixth Circuit case in which the court accepted a First Amendment claim where an individual was prevented from peacefully wearing a sign bearing a religious message in a permitted public forum--the difference being that the Repent America people "interfered" with Philly Pride's own expression, especially the on-stage performances. Judge Walter Stapleton concurred, explicitly rejecting the notion that the plaintiffs had "interfered" with Philly Pride's speech or that the police properly could remove the protesters simply because they were protesting loudly (he still concurred because the move-along order became proper when some of the plaintiffs targeted offensive words at an individual, thus using unprotected fighting words).

The case presents an interesting take on the conflict between speech and counter-speech in a public forum. In order for a police relocation order (even if content-neutral) to be valid, the speech of the organizers must be in a preferred position to the speech of the protesters (put differently, the original speech must be in a preferred position to the counter-speech). The question (and the dispute between the majority and Judge Stapleton) is the basis for that favored position. The majority seems to suggest it was because Philly Pride had a permit for the event, making Repent America something of a "guest" within the permitted area. Thus, in any collision, Repent America's counter speech "disrupted" the original speech from the organizers. So Repent America can speak onl6 in a "non-disruptive" fashion (walking through the grounds, holding signs, leafletting, etc.), but not in a way that competes with Philly Pride's in terms of volume or obviousness (no bullhorns, no shouting, no protesting next to a stage or in front of vendor booths).

But that cannot be right, because a non-exclusive permit to use some portion of a public forum does not automatically grant control over all speech in that space. Under the majority's view, one side dominates and another always could be prohibited from speaking loudly or using sound-amplification equipment so as not to "drown out" (interfere with) the other side's speech. Thus, if the Gay Pride Parade has a permit to march down Main Street, police can prevent anti-gay-rights group from protesting too loudly on the sidewalks along the parade route. (And, to highlight the problem with this First Amendment understanding, replace Gay Pride Parade with KKK and anti-gay-rights group with NAACP in the above example).

Stapleton describes what I think is (and certainly ought to be) the correct First Amendment principle: "When conflicting points of view clash in a public forum, neither side has a First Amendment right to speak without interruption, and the police must allow the competing groups to compete unless and until there are 'fighting words,' imminent violence or other serious threat to public safety." Short of that, it simply is a competition between differing views to be heard in public space. Stapleton also traces what should have been the demise of the use of disturbing the peace (and the idea of "disruption") to halt protected speech.

The case interests me because the analytical difference affects my continuing work on sports-fan speech. I have argued that fans can pretty much say what they want, within the categories of protected speech, as loudly as they want. If my loud booing or heckling is louder than your cheering and thus drowns it out, tough--my liberty to speak loudly on the game in this public forum is on the same footing as your liberty to speak on the game in this public forum. There should be no hierarchy of speakers (fans) in the forum. But the majority's approach here seems to suggest there might be such a hierarchy, although it is not clear how that hierarchy ought to be determined. Do families who want to quietly watch and cheer trump those who want to get loud and offensive, because the latter are disturbing the peace of the former? Does "positive" cheering trump "negative" cheering? Is a ticket a "permit" to speak in the grandstand with which hecklers are interfering? (Of course, hecklers are ticketed also). This is problematic for a model of vigorous fan-speech. The decision strongly hints that stadium ushers should be able to silence loud fans to protect other fans from having their enjoyment of the game and their own cheering disrupted or disturbed.

By the way, while I like Stapleton's basic framework (everything is even until the protesters use fighting words or other unprotected speech), I have two concerns with his conclusion. First, I am not certain that the protesters used actual fighting words, as that narrow category is defined. Yes, they targeted comments at an individual, but it is not clear they were of the kind inherently likely to provoke a violent response. Second, only a few of the eight protesters actually used fighting words (at which point a move-along order became permissible as to them), yet Stapleton accepts that the police could order all eight to move along because "once fighting words have been uttered, the police can intervene to the extent necessary to defuse the situation and prevent a breach of the peace." That goes a bit far for me.