Antigay group couldn't disrupt Phila. event, court rules

Anti-homosexual activists arrested during Philadelphia's 2004 OutFest celebration had a First Amendment right to demonstrate but not to disrupt the coming-out festival, a federal appeals court ruled yesterday.

The decision by a three-judge panel of the U.S. Court of Appeals for the Third Circuit came in a lawsuit brought by 11 protesters affiliated with Repent America, a Lansdowne group whose members preach that homosexuality is sinful.

The activists were arrested after disobeying police orders to move as they proclaimed their message, with one member chastising a transgender person as a "she-man."

All charges were dropped, and the activists sued, contending that police and the city violated their First Amendment rights and that police silenced them because of their message.

But the Third Circuit said Philadelphia police "had ample justification" in directing the protesters to move when they "interfered" with event activities.

"The police action was not based on the content of [the activists'] message but on their conduct," wrote Judge Dolores K. Sloviter, who said a video showed the Repent America group had tried to "drown out" platform speakers and congregated in the middle of the walkway.

Philly Pride Presents Inc. organized OutFest to celebrate National Coming Out Day, which is held every October.

Philly Pride had a permit for the event, and contended that it had a right to exclude the antigay activists.

The court said that the anti-homosexual group had a First Amendment right to communicate its message - but that those rights "are not superior" to the rights of Philly Pride, as the permit holder, to effectively convey its message "that we're out and proud of who we are" and the public's ability to hear that message.

"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," Sloviter wrote.

When protesters "move from distributing literature and wearing signs to disruption of the permitted activities," she went on, "the existence of a permit tilts the balance in favor of the permit-holders."

Michael Marcavage, founder of Repent America and one of the plaintiffs, said the group had not been disruptive, but merely had tried to convey its message.

Lawyer Jeremy Frey, who represented Philly Pride, said the decision meant that Repent America and any other protesters "may express their message" during the coming OutFest "only so long as that expression does not disrupt or interfere with the message of the event."

Marcavage said he was pleased that the Third Circuit had ruled that his group had a right to attend the event.

"We'll be there in October," he said.