Susan Startzell v. City of Philadelphia, Pennsylvania

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-1461
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
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 05-cv-05287)
District Judge: Hon. Lawrence F. Stengel

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2
Argued February 11, 2008
Before: SLOVITER, SMITH, and STAPLETON, Circuit Judges
(Filed: July 15, 2008)
_____
Amanda L. H. Brinton
Lloyd T. Hoppe, Jr. (Argued)
C. Scott Shields
Shields & Hoppe
223 North Monroe Street
P.O. Box 23
Media, PA l9063-0000
Attorneys for Appellants
Jane L. Istvan (Argued)
City of Philadelphia Law Department
17 Floorth
1515 Arch Street
One Parkway
Philadelphia, PA l9l02-0000
Jeremy D. Frey (Argued)
Pepper Hamilton
18 & Arch Streetth
3000 Two Logan Square
Philadelphia, PA l9l03-0000
Attorneys for Appellees
_____
OPINION OF THE COURT

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Plaintiffs/Appellants originally also named as defendants1
District Attorney Lynne Abraham, Assistant District Attorney
Donna Marcus, and the Philadelphia District Attorney’s Office, but
voluntarily dismissed those defendants.
3
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), and Philly Pride, Fran Price, Philly1
Pride’s Executive Director, and Charles F. Volz, Jr., Philly Pride’s
volunteer OutFest Coordinator and Senior Advisor (“Philly Pride,”
collectively).
I.
Background

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The other ten Appellants are Susan Startzell, Nancy Major,2
James Cruise, Gerald Fennell, Randall Beckman, Linda Beckman,
Mark Diener, Dennis Green, Arlene Elshinnawy, and Lauren
Murch (“Appellants,” collectively).
OutFest is held on the Sunday closest to October 11, which3
is National Coming Out Day.
4
A. Facts
Appellants are eleven Christians affiliated with an
organization known as Repent America, which was founded by
Appellant Michael Marcavage in 2002. Appellants believe that2
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” and to affirm LGBT3
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

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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.

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Because Repent America was accompanied by a film crew4
and two resulting videotapes are in the record (“Roll Call” and
“OutFest”), we have had the opportunity to view many of the
incidents at issue here. The police roll call took place outdoors and
was recorded on videotape.
Some of the signs read: “Christ Died to Save Sinners”;5
“Homosexuality is sin. Christ can set you free.” Startzell v. City
of Philadelphia, No. 05-05287, 2007 WL 172400, at *2 n.4 (E.D.
Pa. Jan. 18, 2007); Supp.App. at 18.
6
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. It is of interest that5
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.

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7
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 counsel Simmons told Appellants,
who had come to a standstill in the middle of the street, that they
had to move again because there were complaints that they were
blocking access to vendor booths. At this point, Appellants were
surrounded by about forty to fifty other people, including the police
and the Pink Angels. Appellants were instructed by Simmons,
Captain Fisher, and Chief Tiano to move farther north on 13th
Street to Walnut Street, near a popular gay bar named Woody’s that
was located within the OutFest permit area but at its perimeter.
Marcavage refused to comply with the police order, saying “[w]e’re
not leaving the event,” and directed his group to walk in the
opposite direction, back toward the main stage area. OutFest video.
The police warned him that refusal to follow their directions could
lead to his arrest, but Marcavage refused to move. Chief Tiano

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8
then ordered the police to place Appellants under arrest for
disorderly conduct, refusing to obey police orders, and related
charges. Marcavage lay on the ground after being informed that he
was under arrest. He declined the police order to stand and was
lifted in a supine position by several police officers, and stood only
after they arrived at the police vehicle. Appellants were arrested at
approximately 1:30 p.m. and were incarcerated for twenty-one
hours. All charges against them were ultimately dismissed.
B. Procedural History
Appellants filed this lawsuit in the United States District
Court for the Eastern District of Pennsylvania. The complaint
alleged violations of 42 U.S.C. §§ 1983 and 1985(3), the
Pennsylvania Constitution, and various state laws. Philly Pride
filed a motion to dismiss the only two counts on which it was also
named as defendant (conspiracy in violation of §§ 1983 and
1985(3)). The District Court denied its motion. Following the
discovery period, Philly Pride and the City filed separate motions
for summary judgment, and Appellants filed a cross-motion for
partial summary judgment. On January 18, 2007, the District Court
granted summary judgment in favor of Philly Pride and the City.
The Court rejected Appellants’ First Amendment claim
against the City, finding that the City did not prohibit Appellants’
speech based on its content, but rather imposed reasonable time,
place, or manner restrictions that were content neutral, narrowly
tailored, and allowed for alternative channels of communication.
The Court rejected Appellants’ viewpoint-based discrimination and
“heckler’s veto” arguments, and held that Philly Pride “had the
right to exclude [Appellants] and their contrary message from [its]
expressive, permitted event.” Startzell, 2007 WL 172400, at *9.
It based that holding on Hurley v. Irish-Am. Gay, Lesbian, &
Bisexual Group of Boston, Inc., 515 U.S. 557 (1995).
The District Court also granted summary judgment to the
City on Appellants’ First Amendment retaliation claim, which
Appellants have not pursued in this appeal. The Court further
granted summary judgment to the City on Appellants’ Equal
Protection claim of selective treatment, Fourth Amendment claims

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We have jurisdiction pursuant to 28 U.S.C. § 1291 because6
this is an appeal from a final order disposing of all claims regarding
all parties.
9
of unreasonable seizure, false arrest, and malicious prosecution
stemming from Appellants’ arrest, and claims brought pursuant to
Monell v. Dep’t of Social Servs. of N.Y., 436 U.S. 658 (1978).
With respect to the conspiracy claims against both groups of
defendants, the Court found that Appellants had created no issue of
material fact regarding the existence of any understanding or
agreement between the City and Philly Pride to deprive Appellants
of their First Amendment rights. Finally, the Court dismissed
Appellants’ claim for punitive damages against the individual
officers.6
II.
Standard of Review
This court reviews the District Court’s decision resolving
cross-motions for summary judgment de novo. Cantor v. Perelman,
414 F.3d 430, 435 n.2 (3d Cir. 2005). A grant of summary
judgment is appropriate “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The court
must view all evidence and draw all inferences in the light most
favorable to the non-moving party, and summary judgment is
appropriate only if there are no genuine issues of material fact.
Davis v. Mountaire Farms, Inc., 453 F.3d 554, 556 (3d Cir. 2006).
III.
Discussion
A. First Amendment Claim
1. General Principles

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10
Three considerations underlie any First Amendment analysis
of a challenge that plaintiffs were excluded from an event: (1)
whether the speech is “protected by the First Amendment”; (2) “the
nature of the forum”; and (3) whether the government’s
“justifications for exclusion from the relevant forum satisfy the
requisite standard.” Cornelius v. NAACP Legal Defense and Educ.
Fund, Inc., 473 U.S. 788, 797 (1985). The first two considerations
are not at issue in this case, as the parties do not dispute that
Appellants’ speech deserved constitutional protection and agree
that OutFest took place in a public forum – the streets and
sidewalks of Philadelphia. We turn therefore to the City’s
justifications for the events at issue.
The Supreme Court has frequently declared that the very
core of the First Amendment is that the government cannot regulate
speech “because of its message, its ideas, its subject matter, or its
content.” Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 96
(1972). It explained that “[i]f the marketplace of ideas is to remain
free and open, governments must not be allowed to choose ‘which
issues are worth discussing or debating . . . .’” Consol. Edison Co.
of N.Y., Inc. v. Public Serv. Comm’n, 447 U.S. 530, 537-38 (1980)
(citation omitted). In considering the extent to which the
government may restrict or regulate expressive activity in a public
forum, a distinction must be drawn between content-based and
content-neutral regulations.
“[L]aws that by their terms distinguish favored speech from
disfavored speech on the basis of the ideas or views expressed are
content based.” Turner Broadcasting Sys., Inc. v. FCC, 512 U.S.
622, 643 (1994). Content-based restrictions on speech are
“presumptively invalid.” R.A.V. v. City of St. Paul, 505 U.S. 377,
382 (1992). They are subject to the “most exacting scrutiny,”
Turner, 512 U.S. at 642, because they “pose the inherent risk that
the Government seeks not to advance a legitimate regulatory goal,
but to suppress unpopular ideas or information or manipulate the
public debate through coercion rather than persuasion,” id. at 641.
“When the government targets not subject matter, but
particular views taken by speakers on a subject, the violation of the
First Amendment is all the more blatant. . . . Viewpoint

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In both Sistrunk v. City of Strongsville, 99 F.3d 194 (6th7
Cir. 1996), and Schwitzgebel v. City of Strongsville, 898 F. Supp.
1208 (N.D. Ohio 1995), the events (Bush-Quayle campaign rallies)
were not open to the general public but required attendees to obtain
admission tickets.
11
discrimination is thus an egregious form of content discrimination.
The government must abstain from regulating speech when the
specific motivating ideology or the opinion or perspective of the
speaker is the rationale for the restriction.” Rosenberger v. Rector
& Visitors of Univ. of Va., 515 U.S. 819, 829 (1995). As Justice
Brennan wrote, “[v]iewpoint discrimination is censorship in its
purest form and government regulation that discriminates among
viewpoints threatens the continued vitality of ‘free speech.’” Perry
Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 62
(1983) (Brennan, J., dissenting).
To justify a content-based restriction, the government must
show that the regulation or restriction is necessary to serve a
compelling state interest and that it is narrowly drawn to achieve
that end. Id. at 45. By contrast, restrictions on speech that are
viewpoint neutral and subject-matter neutral may permissibly
regulate the time, place, or manner of expression if they are content
neutral, are narrowly tailored to serve a significant government
interest, and leave open ample alternative channels of
communication. Id.
2. Whether Philly Pride had a Right to Exclude
It has been Philly Pride’s position that because it had a city
permit to conduct OutFest, it had a correlative right to exclude from
the OutFest event those who hold contrary, indeed antagonistic,
viewpoints. There is language in the District Court’s opinion that
supports that position. Thus, for example, the Court stated, “[o]nce
the City issued a permit to Philly Pride for OutFest, it was
empowered to enforce the permit by excluding persons expressing
contrary messages.” Startzell, 2007 WL 172400, at *6. The
authorities cited by the District Court do not support that broad
proposition. Nor does the Supreme Court opinion relied on by all7

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12
parties. My colleague in his concurrence suggests that we believe
that “the police in effect issued an exclusive permit to the OutFest
supporters . . . .” As we make clear hereafter, that is not the
holding of this opinion.
In Hurley v. Irish-Am. Gay, Lesbian, & Bisexual Group of
Boston, Inc., 515 U.S. 557 (1995), the Massachusetts state courts
had interpreted the state’s public accommodation law to require the
South Boston Allied War Veterans Council, a private group that
annually organized the Boston St. Patrick’s Day parade, to include
among the marchers a contingent from an organization of openly
gay, lesbian and bisexual individuals of Irish heritage (“GLIB”).
The Supreme Court, in a unanimous opinion, held that the state
Supreme Judicial Court’s decision violated the parade organizers’
First Amendment right of autonomy, the right to control one’s own
speech. The Court held that the First Amendment protected the
Council’s decision “to exclude a message it did not like from the
communication it chose to make . . . .” Id. at 574. The Court held
that to compel the organizers of the parade to include GLIB, or any
other group that expressed a message the organizers did not agree
with, would be “essentially requiring [them] to alter the expressive
content of their parade.” Id. at 572-73. Such a requirement would
violate “the fundamental rule of protection under the First
Amendment, that a speaker has the autonomy to choose the content
of his own message.” Id. at 573.
Hurley does not control the case before us. The Hurley
Court disallowed compelled, participatory speech, noting that “like
a composer, the [parade organizers] select[] the expressive units of
the parade from potential participants, and though the score may not
produce a particularized message, each contingent’s expression in
[their] eyes comports with what merits celebration on that day.” Id.
at 574.
Hurley is as distinguishable from the situation presented here
as was the decision in Turner, 512 U.S. at 622, from Hurley. As the
Hurley Court noted, Turner upheld regulations that required cable
operators to set aside channels for designated broadcast signals
because cable had long served as a conduit for broadcast signals,
and there was little risk that cable viewers would assume that the

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13
cable operator endorsed the ideas or messages carried on the
broadcast stations. Hurley, 515 U.S. at 575-76.
The situation in Hurley would be comparable to that
presented here if Repent America had sought a stage area or a
vendor booth, because such participation in OutFest “would likely
be perceived as having resulted from [Philly Pride’s] customary
determination about a unit admitted to [participate in OutFest’s
activities], that its message was worthy of presentation and quite
possibly of support as well.” Id. at 575. However, that is not the
issue in this case. Instead, the question presented is whether Hurley
authorizes exclusion of Appellants from attending OutFest, a
private-sponsored event in a public forum that was free and open
to the general public. We hold that it does not.
Although the Hurley parade took place on a public
thoroughfare, nothing in the opinion suggests that GLIB could be
excluded from the streets after the parade had passed. To the
contrary, the Court noted that GLIB was free to seek its own parade
permit. Id. at 578. There is no basis to read Hurley as
circumscribing the long line of authority upholding free access by
the general public to street festivals and other events held in
traditional public fora.
In Hague v. C.I.O., 307 U.S. 496, 515 (1939), Justice Owen
J. Roberts wrote, streets and parks “have immemorially been held
in trust for the use of the public and, time out of mind, have been
used for purposes of assembly, communicating thoughts between
citizens, and discussing public questions.” That principle has been
reiterated in case after case, see, e.g., Frisby v. Schultz, 487 U.S.
474, 481 (1988); Perry, 460 U.S. at 45; United States v. Grace, 461
U.S. 171, 177 (1983), and neither the grant of a permit nor anything
in Hurley alters that still viable principle.
Those of our sister circuits that have had occasion to
consider the issue agree. The Court of Appeals for the Ninth
Circuit held that a municipal policy that allowed permit-holders
sponsoring an event in a public forum to exclude individuals who
express messages with which the permit-holder disagrees was
inconsistent with the First Amendment. See Gathright v. City of

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The court distinguished its earlier decision in Sistrunk, 998
F.3d at 196, 200, which had rejected plaintiff’s content-based
discrimination claim where she was excluded from expressing her
pro-Clinton views at a permitted, pro-Bush rally, because the
Republican organization was engaging in collective, expressive
activity and the permit it had received provided a specific use and
14
Portland, 439 F.3d 573, 575-76 (9th Cir. 2006). The court held that
the city could not enjoin an evangelical Christian from wearing
signs or passing out pamphlets at a permitted event in a public
location. It rejected the city’s argument that Hurley allowed such
exclusion, noting that the plaintiff sought “only to be heard, not to
have his speech included or possibly confused with another’s . . . .”
Id. at 578. The court held that the city’s policy was not a
reasonable time, place, or manner regulation of public space,
because – even assuming it was content neutral and was supported
by a significant government interest – “the policy of allowing
permittees unfettered discretion to exclude private citizens on any
(or no) basis is not narrowly tailored to the City’s legitimate interest
in protecting its permittees’ right under Hurley.” Id. at 577.
Similarly, in Parks v. City of Columbus, 395 F.3d 643 (6th
Cir. 2005), the court held that the city could not prevent plaintiff,
who attended a permitted Arts Festival, from walking through the
Festival grounds wearing a sign bearing a religious message. The
court distinguished Hurley on the basis that Parks, like Gathright,
“d[id] not seek inclusion in the speech of another group . . . [but]
was merely another attendee” of a permitted event open to the
public, in a traditional public forum. Id. at 651; see also Mahoney
v. Babbitt, 105 F.3d 1452, 1456 (D.C. Cir. 1997) (refusing to
extend Hurley to allow parade organizers to exclude people wishing
to stand along parade route holding protest signs); cf. Wickersham
v. City of Columbia, 481 F.3d 591, 600 (8th Cir. 2007) (reasoning
that Hurley did not apply to state actor who organized air show
where it “has not shown that its message was dependent upon the
composition of the crowd at the air show” or that appellants’ signs
and leaflets were likely to be identified with it).
As the court stated in Parks, Parks only sought to exercise8

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was limited to members of the Republican organization and
invitees, who were required to obtain admission tickets in order to
attend the rally.
15
his First Amendment rights on streets which “remained a traditional
public forum notwithstanding the special permit that was issued to
the Arts Council.” Id. at 652. The city cannot “claim that one’s
constitutionally protected rights disappear [where] a private party
is hosting an event that remained free and open to the public.” Id.
The court then proceeded to conduct a traditional public forum
analysis to hold that Parks’ removal from the permitted area was an
unconstitutional content-based restriction, because he was
peacefully present at the Arts Festival but was asked to leave for no
other reason than that the event sponsor wanted him removed. Id.
at 654-55.
We agree with this line of cases. It follows that the District
Court erred in extending Hurley to allow Philly Pride to exclude
Appellants from the public streets occupied by OutFest. Appellants
were dissenting speakers on the Philadelphia streets and sidewalks
where OutFest took place. There was no danger of confusion that
Appellants’ speech would be confused with the message intended
by Philly Pride. See Mahoney, 105 F.3d at 1456-57. Thus,
Appellants were not infringing on Philly Pride’s fundamental right
under the First Amendment to have “the autonomy to choose the
content of [its] own message.” Hurley, 515 U.S. at 573.
Furthermore, like the Arts Festival in Parks, OutFest took
place in the streets and sidewalks of Philadelphia, an undisputed
quintessential public forum. The issuance of a permit to use this
public forum does not transform its status as a public forum. Parks,
395 F.3d at 652; see also Grace, 461 U.S. at 180 (stating that
government “may not by its own ipse dixit destroy the ‘public
forum’ status of streets and parks which have historically been
public forums”) (citation and internal quotations omitted). “In
places which by long tradition or by government fiat have been
devoted to assembly and debate, the rights of the State to limit
expressive activity are sharply circumscribed.” Perry, 460 U.S. at
45; see also Frisby, 487 U.S. at 480 (noting that “public streets and

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16
sidewalks have been used for public assembly and debate, the
hallmarks of a traditional public forum”). In such traditional public
fora the state may not prohibit all communicative activity. Perry,
460 U.S. at 45. Indeed, “[s]treets, sidewalks, parks, and other
similar public places are so historically associated with the exercise
of First Amendment rights that access to them for the purpose of
exercising such rights cannot constitutionally be denied broadly and
absolutely.” Carey v. Brown, 447 U.S. 455, 460 (1980) (citations
and internal quotations omitted).
3. Justifications for the City’s Actions
Although we believe some of the language in the District
Court’s opinion cannot be supported, it does not follow that its
holding was erroneous. As the Supreme Court has stated, “[t]he
principles of the First Amendment are not to be treated as a promise
that everyone with opinions or beliefs to express may gather around
him at any public place and at any time a group for discussion or
instruction.” Poulos v. New Hampshire, 345 U.S. 395, 405 (1953).
Indeed, “[n]othing in the Constitution requires the Government
freely to grant access to all who wish to exercise their right to free
speech on every type of Government property without regard to the
nature of the property or to the disruption that might be caused by
the speaker’s activities.” Cornelius, 473 U.S. at 799-800.
Therefore, although the ability of the state to limit expressive
activity in a traditional public forum is “sharply circumscribed,”
Perry, 460 U.S. at 45, the state remains free to take action to
maintain public order. It follows that although Appellants cannot
be excluded from the streets and sidewalks of Philadelphia where
OutFest took place, they are not free to proceed as they like through
the permit area.
Even in a traditional public forum, the government may
impose content-neutral time, place, or manner restrictions provided
that the restrictions “are justified without reference to the content
of the regulated speech, that they are narrowly tailored to serve a
significant governmental interest, and that they leave open ample
alternative channels for communication of the information.” Ward
v. Rock Against Racism, 491 U.S. 781, 791 (1989) (citation and
internal quotations omitted). Thus, the City had the authority to

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17
regulate Appellants’ First Amendment activities where necessary.
See Wickersham, 481 F.3d at 601 (“[Air show organizer-state
actor] remains free to take reasonable steps to ensure that its air
show message would not be submerged by any alternate forms of
speech which prove to be unduly intrusive in their timing, place, or
manner of expression.”).
a. Content Neutrality
To determine if a restriction is content neutral, “[t]he
principal inquiry . . . , in speech cases generally and in time, place,
or manner cases in particular, is whether the government has
adopted a regulation of speech because of disagreement with the
message it conveys.” Ward, 491 U.S. at 791. It is the
government’s purpose that controls. Id. A regulation is deemed
content neutral if it serves purposes unrelated to the content of
speech, regardless of whether it incidentally affects certain speakers
or messages and not others. Id. That is, government regulation of
speech is properly regarded as content neutral if it is “justified
without reference to the content of the regulated speech.” Id.
(citation and internal quotations omitted) (emphasis in original).
The District Court rejected Appellants’ argument that the
police officers acted primarily because of concern with the crowd’s
reaction to their message, finding instead that “the response to the
plaintiffs was a response to context, not content[, which] context
developed from the City’s issuing of a valid permit to Philly Pride.”
Startzell, 2007 WL 172400, at *6. A state or municipality has the
right to regulate the use of city streets “to assure the safety and
convenience of the people in their use and the concomitant right of
the people of free speech and assembly.” Cox v. Louisiana, 379
U.S. 536, 554 (1965).
The rights of free speech and assembly, while fundamental
in our democratic society, still do not mean that everyone
with opinions or beliefs to express may address a group at
any public place and at any time. The constitutional
guarantee of liberty implies the existence of an organized
society maintaining public order, without which liberty itself
would be lost in the excesses of anarchy.

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The court found that reasonable police officers could have9
construed a Senate resolution authorizing the welcoming ceremony
as a permit that allowed them to instruct a person holding an
anti-Olympics sign to remove it while not instructing those holding
18
Id.; see also Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 387
(1969) (“[T]he right of free speech . . . does not embrace a right to
snuff out the free speech of others.”). Thus, for instance, a
municipality can control the use of its public streets for parades or
processions, and it has similar authority “to give consideration,
without unfair discrimination, to time, place and manner in relation
to the other proper uses of the streets.” Cox v. New Hampshire,
312 U.S. 569, 576 (1941).
The Supreme Court has recognized permitting schemes as a
content-neutral means for the government “to regulate competing
uses of public forums.” Forsyth County v. Nationalist Movement,
505 U.S. 123, 130 (1992) (noting that “any permit scheme
controlling the time, place, and manner of speech must not be based
on the content of the message, must be narrowly tailored to serve
a significant governmental interest, and must leave open ample
alternatives for communication”); see also Kroll v. U.S. Capitol
Police, 847 F.2d 899, 903 (D.C. Cir. 1988) (“Permit systems are the
embodiment of time, place, and manner restrictions that have long
enjoyed the approbation of the Supreme Court.”). Permits allow
the government to arrange a public forum “so that individuals and
groups can be heard in an orderly and appropriate manner,” and
“enforcement of a permit system inevitably requires taking
cognizance of content.” Kroll, 847 F.2d at 903 (emphasis in
original). The principle of content neutrality does not divest police
officers of the ability to enforce valid permits and to ensure that
permitted speech is allowed to take place.
Although Kroll involved a qualified immunity claim, and is
therefore not directly on point, it is nevertheless instructive on the
treatment of permits in the First Amendment context. Kroll
involved a permit to hold a welcoming ceremony for the Olympic
Torch Relay Team on the steps of the United States Capitol
Building. Id. at 900. Relevant to our purposes, the Court of9

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pro-Olympics signs to do the same. Kroll, 847 F.2d at 902. We
need not comment on that holding because we are citing Kroll only
for the limited purpose of explaining how the enforcement of
appropriate permitting schemes comports with the principle of
content neutrality.
19
Appeals for the District of Columbia explained that “[t]he principle
of content neutrality does not . . . mean that a permit system exists
only as an office operation without enforcement capability.” Id. at
903. Different courts have adopted different methods to deal with
counter-protestors. See, e.g., Olivieri v. Ward, 801 F.2d 602, 607
(2d Cir. 1986) (allotting opposing demonstrators thirty minutes
within barricaded enclosure at different times to avoid
confrontation between groups). We are not presented with that
issue here.
Appellants do not challenge the permitting scheme in and of
itself as being an unconstitutional restriction of their speech.
Rather, Appellants urge us to disregard Philly Pride’s permit to hold
OutFest because they believe the non-exclusive permit did not give
the police the right to restrict their speech. We have already made
clear that Appellants possess a First Amendment right to
communicate their message in a public forum. Yet, their rights are
not superior to the First Amendment rights of Philly Pride, as
permit-holder, to effectively convey the message of its event – “that
we’re out and proud of who we are,” App.II at 309 – and of the
audience’s ability to receive that message and experience the entire
event.
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

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We note the general proposition that amplified speech,10
such as through the use of bullhorns, is protected expression. See
Stokes v. City of Madison, 930 F.2d 1163, 1168-69 (7th Cir. 1991).
However, “[r]egulation of sound and noise, especially when
competing values are threatened, has long been a recognized
government interest.” Id. at 1170; see also Ward, 491 U.S. at 803
(upholding regulation of volume of amplified music at bandshell
in New York City’s Central Park as “a reasonable regulation of the
place and manner of expression”).
The City argues that Appellant Diener’s insulting11
statements to the transgendered individual were unprotected
fighting words, citing Gilles v. Davis, 427 F.3d 197, 205 (3d Cir.
2005). In Gilles, we found that part of Gilles’ speech – epithets
directed at a Christian-lesbian woman – constituted fighting words,
and stated that “[w]here part of speech constitutes fighting words,
the police may arrest for disorderly conduct even though other parts
of the speech may be less provocative.” Id. We need not decide
whether this would provide an alternate basis for justifying
Diener’s arrest if we considered his comments to be fighting
words, because we decide this case on other grounds.
20
favor of the permit-holders.
In the case before us, the video shows that the Repent
America contingent used bullhorns and microphones in an attempt
to drown out the platform speakers and then, most significantly,
congregated in the middle of the walkway. The police had ample
justification to direct Appellants to move when they interfered with
the permitted event’s activities by expressing their message with
loud bullhorns right next to the main stage where musical
performances were held, directly confronting a transgendered10
individual, and blocking access to the vendors who had applied11
for booths at OutFest. The police action was not based on the
content of Appellants’ message but on their conduct. See Kroll,
847 F.2d at 903.
Appellants’ conduct was different in kind and degree from
that in Parks, where a demonstrator was removed from a non-
exclusive Arts Festival which had a permit. 395 F.3d at 646. The

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21
court in Parks found that the city’s actions were based on the
content of the demonstrator’s speech, as “Parks was acting in a
peaceful manner and the only difference between him and the other
patrons was that he wore a sign communicating a religious message
and distributed religious leaflets.” Id. at 653-54. There was no
evidence that Parks was interfering with or disrupting any part of
the Arts Festival; he was asked to move simply because the event
sponsor did not want him there. Id. at 654. The court stated,
“under these circumstances we find it difficult to conceive that
Parks’s removal was based on something other than the content of
his speech.” Id.
As we noted earlier, here, by contrast, Appellants did not
simply carry their signs or distribute leaflets but used loud
bullhorns to express their message near the stage area, directly
addressed an OutFest attendee in a confrontational manner, and
blocked access to the vendor booths. Because Appellants were
interfering with the permitted event’s message, something the other
OutFest attendees were not doing, see Wickersham, 481 F.3d at
601, the police officers were justified in directing Appellants’
movement away from the stage and the vendors. We take this
occasion to note favorably the restraint with which the police acted,
action we could observe from the videos.
Appellants argue that the police officers improperly used a
“heckler’s veto” by restricting their movement based on the
audience’s reaction to their message. “If there is a bedrock
principle underlying the First Amendment, it is that the government
may not prohibit the expression of an idea simply because society
finds the idea itself offensive or disagreeable.” Texas v. Johnson,
491 U.S. 397, 414 (1989); see also Boos v. Barry, 485 U.S. 312,
322 (1988) (“[I]n public debate our own citizens must tolerate
insulting, and even outrageous, speech in order to provide adequate
breathing space to the freedoms protected by the First
Amendment.”) (citations and internal quotation marks omitted). A
heckler’s veto is an impermissible content-based restriction on
speech where the speech is prohibited due to an anticipated
disorderly or violent reaction of the audience. See Brown v.
Louisiana, 383 U.S. 131, 133 n.1 (1966); see also Forsyth County,
505 U.S. at 134-35 (invalidating ordinance allowing administrator

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Appellants cite to Ovadal v. City of Madison, 416 F.3d12
531, 533-34 (7th Cir. 2005), in which Christian protestors who held
large signs above the sides of a pedestrian overpass spanning a
busy highway were forced to leave under threat of arrest because
22
to adjust parade permit fees based on anticipated hostility to speech
and concomitant higher cost of security).
The District Court found that the heckler’s veto
jurisprudence was “inapposite because it concerns government
censorship that completely prohibits speech before it is made based
on anticipated listener reaction to the speech.” Startzell, 2007 WL
172400, at *8. Although we agree with Appellants that the
heckler’s veto analysis is not so limited but may apply to situations
where police restrict speech that is taking place, see, e.g.,
Terminiello v. City of Chicago, 337 U.S. 1 (1949); Frye v. Kansas
City Police Dep’t, 375 F.3d 785 (8th Cir. 2004), the more germane
question is whether the City’s actions were based on the content of
the speech. See Ward, 491 U.S. at 791. There is no evidence that
they were. It is apparent that the police understood Appellants had
rights under the First Amendment to express their message, but in
directing Appellants to move to another location within OutFest
they were merely imposing a content-neutral time, place, or manner
restriction. Captain Fisher testified as to his motive as follows: “as
a sworn police officer, I have a duty to protect life and property,
and it’s a case where there’s times there has to be some degree of
separation for the safety and welfare of everybody concerned.”
App.II at 282. Chief Tiano explained that “the significant part” of
the reason he wanted Appellants to move was because they were
blocking the vendors. App.II at 239. Although he admitted there
was “a potential” for the crowd to get hostile based on Appellants’
message, App.II at 239, the undisputed evidence shows Appellants,
with the Pink Angels surrounding them, had attracted a crowd that
was blocking access to the vendor booths. As Chief Tiano
explained, he asked Appellants and not the Pink Angels to move
because “I knew if they would move, I wouldn’t have to worry
about the other group. They’d move to[o].” App.II at 237. There
is no evidence to suggest that the police direction to Appellants to
move to a different location was based on content or viewpoint.12

-- 22 of 35 --

drivers were disturbed by the signs. The court reversed a grant of
summary judgment because genuine issues of material fact
remained as to whether the police had imposed a heckler’s veto, as
“[t]he officers are permitted to decide on an ad hoc basis whether
to allow the protest to continue depending on how drivers react to
the signs on the pedestrian overpass.” Id. at 537. Ovadal is
distinguishable because here there is undisputed evidence that the
police did not interrupt Appellants’ speech until they disobeyed a
police order to move in order to allow access to vendor booths,
leading to their arrest.
23
Appellants rely on certain testimony to support their
argument; however, the cited testimony does not lead to the
conclusion that the City’s actions were content based. In the
context of OutFest, which had received a permit to hold its event
and engage vendors to sell their wares, the fact that the police asked
Appellants rather than the Pink Angels to move was a
content-neutral response to the interference caused by Appellants’
actions and loud speech with the permitted event’s activities. See
Kroll, 847 F.2d at 903 (“[E]nforcement of a permit system
inevitably requires taking cognizance of content. Otherwise . . . it
would be impossible to separate non-permitted activity from
activity that did enjoy the authorization conferred by a permit.”)
(emphasis in original). “Preclusion of a message is the evil at
which the content-neutrality principle is aimed, not arrangements
of a public forum so that individuals and groups can be heard in an
orderly and appropriate manner.” Id.
b. Narrow Tailoring
Having decided that the content-neutral analysis is
appropriate, we must consider whether the restriction on
Appellants’ speech was narrowly tailored to serve a significant
government interest, and whether it left open ample alternative
channels of communication. See Ward, 491 U.S. at 791. The
burden is on the City to demonstrate the constitutionality of its
actions. Although the District Court incorrectly placed that burden
on Appellants, that error was without consequence. See Heffron v.
Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 658

-- 23 of 35 --

24
(1981) (Brennan, J., concurring in part and dissenting in part) (“As
our cases have long noted, once a governmental regulation is shown
to impinge upon basic First Amendment rights, the burden falls on
the government to show the validity of its asserted interest and the
absence of less intrusive alternatives.”); N.J. Citizen Action v.
Edison Twp., 797 F.2d 1250, 1255 (3d Cir. 1986) (“Ordinarily,
when a statute or other government action is alleged to infringe on
the exercise of First Amendment rights, the state or municipality
bears the burden of demonstrating the constitutionality of the
action.”).
Appellants do not appear to question the legitimacy of the
City’s interests – to ensure public order and safety and to ensure
that OutFest’s permit to engage in its speech activities is respected.
“As a general matter, it is clear that a State’s interest in protecting
the ‘safety and convenience’ of persons using a public forum is a
valid governmental objective.” Heffron, 452 U.S. at 650; see also
Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 768 (1994)
(recognizing the state “has a strong interest in ensuring the public
safety and order, in promoting the free flow of traffic on public
streets and sidewalks”).
Instead, Appellants challenge the restrictions to their
movement, arguing that they were not narrowly tailored because
they resulted in their complete removal from the event area. The
Supreme Court has stated that “restrictions on the time, place, or
manner of protected speech are not invalid ‘simply because there is
some imaginable alternative that might be less burdensome on
speech.’” Ward, 491 U.S. at 797 (citation omitted). There is no
need to determine if the restrictions are the least intrusive, but only
whether the regulation “‘promotes a substantial government interest
that would be achieved less effectively absent the regulation.’” Id.
at 799 (citation omitted). “‘The validity of [time, place, or manner]
regulations does not turn on a judge’s agreement with the
responsible decisionmaker concerning the most appropriate method
for promoting significant government interests’ or the degree to
which those interests should be promoted.” Id. at 800 (citation
omitted).
The City’s actions in this case were narrowly tailored to

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25
serve its significant interests. As the District Court found, the City
did not exclude Appellants from OutFest but instead went “out of
its way to grant [them] access,” Startzell, WL 172400, at *7, and let
them move about freely “until plaintiffs insulted individual
attendees, blocked access to vendors, and disobeyed direct orders
from the police, who were trying to preserve order and keep the
peace.” Id. Although Appellants’ arrest ultimately silenced their
speech, the police did not initially ban Appellants’ speech; they
were arrested only after they disobeyed police orders to move in a
specified direction.
c. Alternative Channels of Communication
The final factor to be considered in determining whether the
City’s actions were valid time, place, or manner restrictions is
whether there were alternative avenues for the expression of
Appellants’ protected speech. See Ward, 491 U.S. at 802. “[T]he
First Amendment does not guarantee the right to communicate
one’s views at all times and places or in any manner that may be
desired.” Heffron, 452 U.S. at 647. Restrictions have been upheld,
for example, when the challenged regulation neither prevents
access outside of nor within the forum in question. Id. at 654-55.
Until their arrest, Appellants had alternative ways to express
themselves without causing disruption, such as through the use of
smaller signs without bullhorns so that the performances on the
stages would not be obscured, the distribution of leaflets and
counter-information without making derogatory comments, and the
ability to move along with the crowd to express their message while
avoiding standing still and blocking access to the vendors.
Although “[a]n alternative is not ample if the speaker is not
permitted to reach the ‘intended audience,’” Bay Area Peace Navy
v. United States, 914 F.2d 1224, 1229 (9th Cir. 1990) (citation
omitted), that is not what occurred here. Admittedly, Appellants’
intended audience was the LGBT OutFest attendees, whom they
wanted to instruct about what they believed were the sins of
homosexuality. The police officers’ direction that Appellants move
to a less congested area, albeit still within OutFest, may have
reduced their potential audience. Nonetheless, Appellants have not
demonstrated that the avenues that remained were inadequate. See

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Appellants also cite to United States v. Grace, 461 U.S.13
171, 181-82 (1983), in which the Supreme Court rejected the
government’s argument that the speakers maintained the ability to
express their message on sidewalks across the street from the
Supreme Court building. That case involved a total ban on
specified communicative activity on the public sidewalks
26
Ward, 491 U.S. at 802 (“That the city’s limitations on volume may
reduce to some degree the potential audience for respondent’s
speech is of no consequence, for there has been no showing that the
remaining avenues of communication are inadequate.”).
Appellants complain that they were told to move to one
specific area of OutFest; however, the Supreme Court rejected a
similar argument in Heffron, where members of the Krishna
religion were required at a state fair to confine the distribution and
sale of their religious literature and the solicitation of donations to
a fixed location. 452 U.S. at 648, 654. The Court upheld that
requirement as a valid time, place, or manner regulation, as it did
not “deny [the Krishnas] the right to conduct any desired activity at
some point within the forum” and provided for adequate means to
distribute and solicit from a location on the fairgrounds. Id. at 655.
Here, too, there is no showing that Appellants were unnecessarily
limited in conveying their message from the location to which they
were ordered to move, which was only about one-and-one-half
blocks from OutFest’s epicenter and near Philadelphia’s biggest
gay bar, a popular event location.
Appellants cite to Mahoney v. Babbitt, 105 F.3d 1452, 1459
(D.C. Cir. 1997), where the court held that the government’s grant
of permits to protest in two other areas not along President
Clinton’s inaugural parade route did not provide an adequate
alternative channel of communication because “it cannot rightly be
said that all forums are equal.” Here, however, even if Appellants’
message would have been somewhat less effective if expressed
outside OutFest, Appellants were not moved outside of OutFest and
the record shows that ample avenues of communication remained
available for them to preach within the boundaries of OutFest had
they followed the police directions.13

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surrounding the Supreme Court building. Id. Here, Appellants had
opportunities to speak throughout their time at OutFest and were
not silenced until they disobeyed a police order.
27
Therefore, we hold that the City’s actions in restricting
Appellants’ movement when they were interfering with or
disrupting the speech of the permitted event were justified,
reasonable, content-neutral regulations of the time, place, or
manner of their expression.
B. Equal Protection Claim
Appellants raise additional claims but they can be disposed
of easily. They claim that they were denied equal protection of the
law because their movements at OutFest were restricted whereas
the movements of the Philly Pride Pink Angels were not, an issue
we alluded to above. An essential element of a claim of selective
treatment under the Equal Protection Clause is that the comparable
parties were “similarly situated.” Hill v. City of Scranton, 411 F.3d
118, 125 (3d Cir. 2005) (citation omitted). Persons are similarly
situated under the Equal Protection Clause when they are alike “in
all relevant aspects.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992).
The District Court held that Appellants were not similarly
situated to the Philly Pride volunteers because the volunteers were
there as part of a permitted event that celebrated National Coming
Out Day rather than as attendees with no relationship to the
organizers whatsoever. Moreover, even were they similarly
situated, the undisputed evidence demonstrates that the police
compelled the Pink Angels to disperse their human barricade and
let Appellants enter OutFest under threat of arrest. Unlike
Appellants, the Pink Angels complied and therefore were not
arrested for disobeying police orders.
C. Fourth Amendment Claims
Appellants asserted claims against the City of false arrest
and malicious prosecution arising from their arrest on October 10,
2004. The District Court granted summary judgment to the City

-- 27 of 35 --

We need not address whether there was probable cause14
with respect to the remaining charges – failure to disperse and
obstructing a public passage – for the establishment of probable
cause as to any one charge is sufficient to defeat Appellants’
Fourth Amendment claims. Cf. Johnson, 477 F.3d at 82 n.9, 84-85
(applying this rule to malicious prosecution claim only where the
28
because Appellants failed to show lack of probable cause, a
necessary element of a false arrest and malicious prosecution claim.
See Johnson v. Knorr, 477 F.3d 75, 84-85 (3d Cir. 2007) (false
arrest); DiBella v. Borough of Beachwood, 407 F.3d 599, 601 (3d
Cir. 2005) (malicious prosecution). The District Court found that
the police had probable cause to arrest Appellants for disorderly
conduct, failure to disperse, and obstructing a highway.
Under Pennsylvania law, a person is guilty of disorderly
conduct if s/he “with intent to cause public inconvenience,
annoyance or alarm, or recklessly creating a risk thereof, . . . (1)
engages in fighting or threatening, or in violent or tumultuous
behavior; (2) makes unreasonable noise; (3) uses obscene language,
or makes an obscene gesture; or (4) creates a hazardous or
physically offensive condition by any act which serves no
legitimate purpose of the actor.” 18 Pa. Cons. Stat. Ann. § 5503.
Whether a person’s “words or acts rise to the level of disorderly
conduct hinges upon whether they cause or unjustifiably risk a
public disturbance.” Commonwealth v. Hock, 728 A.2d 943, 946
(Pa. 1999). The District Court found there was probable cause to
arrest Appellants for disorderly conduct.
Appellants argue that the Pennsylvania disorderly conduct
statute may not be used against persons engaging in free speech.
However, the First Amendment is not an absolute shield against a
disorderly conduct charge. See Commonwealth v. Gowan, 582
A.2d 879, 881 (Pa. Super. Ct. 1990) (“It is uncontrovertible that the
exercise of free speech can go beyond constitutionally protected
boundaries to the realm of prohibited and criminal behavior.”).
Moreover, although speech may be protected, Appellants’ choice
to disobey police orders is not. Therefore, summary judgment was
properly granted on Appellants’ Fourth Amendment claims.14

-- 28 of 35 --

circumstances leading to the arrest and prosecution are
intertwined).
29
D. Municipal Liability
Appellants argue that the District Court improperly granted
summary judgment in favor of the City on their claims that the City
had a custom or policy and/or failed to train or supervise its police
officers such that Appellants were deprived of their constitutional
rights. In Monell v. Dep’t of Social Servs. of N.Y., 436 U.S. 658,
690 (1978), the Supreme Court held that “municipalities and other
local government units [are] included among those persons to
whom § 1983 applies.” For § 1983 liability to attach, Appellants
must show that the City was responsible for any constitutional
violations. Collins v. City of Harker Heights, 503 U.S. 115, 120
(1992). Accordingly, “for there to be municipal liability, there . .
. must be a violation of the [Appellants’] constitutional rights.”
Brown v. Pa. Dep’t of Health Emergency Med. Servs. Training
Inst., 318 F.3d 473, 482 (3d Cir. 2003). Because we have found
that there was no violation of Appellants’ constitutional rights, we
need not reach the claim against the City under Monell. It too was
properly dismissed.
E. Conspiracy Claims
Appellants also brought conspiracy claims under 42 U.S.C.
§§ 1983 and 1985(3) against Philly Pride and the City, arguing that
they conspired together “to use the ‘pink angels’ to violate
Plaintiffs’ First Amendment rights and to ultimately set Plaintiffs
up so they would be removed from the event and arrested.”
Appellants’ Br. at 49. The District Court held, and we agree, that
there is no evidence from which one could infer that Philly Pride
and the City had an understanding or agreement to conspire against
Appellants. To constitute a conspiracy, there must be a “‘meeting
of the minds.’” Adickes v. S. H. Kress & Co., 398 U.S. 144, 158
(1970). Indeed, the evidence demonstrates that Philly Pride and the
City “took diametrically opposed positions” regarding how to deal
with Appellants’ presence at OutFest. Startzell, 2007 WL 172400,
at *18. The City rejected Philly Pride’s requests to exclude

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30
Appellants from attending OutFest; moreover, the police forced the
Pink Angels to allow Appellants to enter OutFest under threat of
arrest. It was also the vendors’ complaints, not requests by Philly
Pride, that led the police officers to order Appellants to move
toward OutFest’s perimeter. There is no evidence of a conspiracy
between the City and Philly Pride.
IV.
Conclusion
For the reasons set forth, we will affirm the judgment of the
District Court granting summary judgment to Philly Pride and the
City on all of Appellants’ substantive claims.
STAPLETON, J., concurring:
This case is governed by our decision in Gilles v. Davis.
427 F.3d 197 (3d Cir. 2005). In Gilles, this Court found that a
street preacher on a college campus who told passersby that
“there are thousands of fornicators on this campus,” there are
“drunkards . . . everywhere,” and alleged that the area was being
overrun by “drugs, sex [and] booze,” was engaging in protected
speech. Id. at 201, 205. However, when the street preacher
singled out a woman who had identified herself as a homosexual
Christian for personal abuse – calling her a “Christian lesbo,” a
“lesbian for Jesus,” and a “bestiality lover,” and insinuating that
she had “la[id] down with dogs” – this Court found his speech
so “especially abusive” that it amounted to “fighting words.” Id.

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31
Accordingly, we held that the police could properly stop the
preacher from continuing his diatribe. Id. at 205.
Just like the street preacher in Gilles, the members of the
Repent America group started out by preaching their beliefs in
a general sense to a crowd known to be hostile to their
viewpoint. This was protected. They then singled out a
transgendered individual for abuse, repeatedly calling him a
“she-man,” telling him, “The mirror lied to you this morning.
Your shadow is showing,” and by suggesting that his sexual
identity would send him to hell. Startzell v. City of
Philadelphia, No. 05-05287, 2007 WL 172400, at *3 (E.D. Pa.
Jan. 18, 2007). This was the functional equivalent of the
preacher’s unprotected conduct in Gilles, and for that reason, I
conclude that these statements amounted to “fighting words”
that merited police intervention. While not all eight members of
the Repent America group used fighting words, 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. The response of the police in this instance was
reasonably calculated to accomplish that legitimate objective.
While I agree that the rights of the Repent America
protesters were not violated, I cannot subscribe to the twin
justifications offered by the Court for its resolution of this
appeal, namely: (1) that there is a First Amendment right to
speak without interruption; or (2) that OutFest’s permit provided
a basis for the police to limit or end Repent America’s protest.
The Court persuasively demonstrates that the Repent
America group had just as much right to be present at the

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festival as did the OutFest supporters and other members of the
public. It also acknowledges that OutFest’s pro-gay message
and Repent America’s anti-gay message were both protected
speech. The police were thus presented with a situation where
two groups with conflicting protected messages were equally
entitled to be on the public street where the crowd was
assembling and were equally entitled to attempt to communicate
their respective messages to as many people as possible. What
the Court fails to do is to explain satisfactorily why, in the
absence of “fighting words” or their equivalent, the police in
such a situation have the ability to favor one side over the other
by requiring the disfavored side to relocate to the periphery of
the festival. My understanding of the case law is that, 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. See, e.g., Terminiello v. Chicago,
337 U.S. 1, 5 (1949) (“freedom of speech, while not absolute, is
nevertheless protected . . . unless shown likely to produce a clear
and present danger of serious substantive evil that rises far
above public inconvenience, annoyance or unrest”).
I, of course, agree with the Court that the
constitutionality of content-neutral restrictions designed to
“regulate competing uses of public forums” is well-settled, and
further agree that “content neutrality does not divest police
officers of the ability to enforce valid permits and to ensure that
permitted speech is allowed to take place.” Ante at Maj. Op. pp.
22-23; e.g., Forsyth County v. Nationalist Movement, 505 U.S.
123, 130 (1992). Indeed, I believe it clear that the state can

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issue a valid permit granting someone the exclusive right to
speak in an otherwise public forum at a particular place and time
so long as the decision to grant such a permit is based on criteria
that are content neutral, narrowly tailored to serve a significant
governmental interest, and leave open alternative opportunities
for communication. E.g., Oliveri v. Ward, 801 F.2d 602 (2d Cir.
1986); Sistrunk v. City of Strongville, 99 F.3d 194 (6th Cir.
1996); Bishop v. Reagan-Bush, 819 F.2d 289 (6th Cir. 1987)
(No. 86-3287, 1987 WL 35970 (6th Cir. May 22, 1987)).
In the absence of “fighting words,” however, these well-
established principles would not have justified the favoritism
shown to the OutFest supporters. All agree that the OutFest
permit was a non-exclusive permit, and nothing in the record
suggests that the City made a decision to grant OutFest the right
to speak without interruption. While the Court seems to suggest
that the police in effect issued an exclusive permit to the
OutFest supporters based on the “disruption” caused by the
Repent America group, this would not have been
constitutionally permissible. Police may not, consistent with the
First Amendment, silence protected speech based solely on their
judgment that it is interfering with competing protected speech.
In Cantwell v. Connecticut, 310 U.S. 296 (1939), the
Supreme Court overturned the petitioner’s conviction for
common law breach of the peace based on his delivery of an
anti-Catholic diatribe in a predominantly Catholic
neighborhood. The Court explained that the criteria of common
law breach of the peace provided the enforcement authority with
a breadth of discretion inconsistent with the First Amendment:

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[The conviction] was not pursuant to a
statute evincing a legislative judgment that street
discussion of religious affairs, because of its
tendency to provoke disorder, should be
regulated, or a judgment that the playing of a
phonograph on the streets should in the interest of
comfort or privacy be limited or prevented.
Violation of an Act exhibiting such a legislative
judgment and narrowly drawn to prevent the
supposed evil, would pose a question differing
from that we must here answer. Such a
declaration of the State’s policy would weigh
heavily in any challenge of the law as infringing
constitutional limitations. Here, however, the
judgment is based on a common law concept of
the most general and undefined nature.
* * *
The offense known as breach of the peace
embraces a great variety of conduct destroying or
menacing public order and tranquility. It includes
not only violent acts but acts and words likely to
produce violence in others. No one would have
the hardihood to suggest that the principle of
freedom of speech sanctions incitement to riot or
that religious liberty connotes the privilege to
exhort others to physical attack upon those
belonging to another sect. When clear and
present danger of riot, disorder, interference with
traffic upon the public streets, or other immediate

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Based on my conclusion that Repent America’s members15
uttered “fighting words” during their demonstration, I believe that
there was sufficient probable cause to arrest them, negating any
Fourth Amendment claims. Further, because I do not believe that
Repent America’s rights were violated, I see no basis for either
their municipal liability or conspiracy claims.
35
threat to public safety, peace, or order, appears,
the power of the State to prevent or punish is
obvious. Equally obvious is it that a State may
not unduly suppress free communication of views,
religious or other, under the guise of conserving
desirable conditions. Here we have a situation
analogous to a conviction under a statute
sweeping in a great variety of conduct under a
general and indefinite characterization, and
leaving to the executive and judicial branches too
wide a discretion in its application.
Id. at 3007-08 (footnote omitted).
The Supreme Court reached similar conclusions in Cox
v. Louisiana, 379 U.S. 536, 551 (1965), and Terminiello, 337
U.S. at 5. In both cases, the Court overturned convictions for
“breaching the peace” where state law defined that crime as
encompassing, respectively, (1) “to interrupt, to hinder, to
disquiet,” and (2) “speech [that] invites dispute . . . or creates a
disturbance.”
I believe the “disruption” standard that the Court here
endorses, like the “breach of the peace” standard in Cantwell,
Cox, and Terminiello, provides the enforcement authority with
excessive discretion.
I concur in the judgment of the Court based on Gilles v.
Davis, 427 F.3d 197 (3d Cir. 2005).15

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