What’s Good for the Goose

Homophobe gathering barred under precedent blocking gays from Boston’s St. Pat’s

A unanimous three-judge panel of the U.S. Court of Appeals for the 3rd Circuit ruled on October 10 that the city of Harrisburg, Pennsylvania, did not violate the constitutional rights of a group of religious homophobes arrested for creating disturbances at gay community events held at city parks. The group was barred by police officers from entering areas where the gay events were taking place.

Ironically, the court relied on a 1995 U.S. Supreme Court decision upholding the exclusion of a gay Irish group from Boston’s St. Patrick’s Day Parade in finding that the city and gay community groups had a right to keep the anti-gay religious protesters out.

Ten individuals filed the suit, claiming that their constitutional rights of speech and protest had been violated by the Harrisburg police.

Judge D. Brooks Smith’s opinion for the court, quoting from the complaint, noted that these individuals “appear periodically at various locations and events in and around the Harrisburg City parks to ‘preach the gospel, preach against the sin of sodomy, and preach that people can be set free from such sin.’”

Members of this group have been arrested under the city’s disorderly conduct laws and several were physically prevented from gay community events held in the city parks. The lawsuit claimed that several Harrisburg city laws violate the First Amendment’s protection for free speech, and that the police were abusing the disorderly conduct law by arresting them for activity protected by the First Amendment.

On June 9, 2002, determined to protest Mayor Stephen R. Reed’s annual gay pride proclamation, two of the plaintiffs, Sheri Sucec and Jeff Mayon, went to the city’s new Civil War museum during a ceremony the mayor presided over honoring that war’s dead. Sucec and Mayon carried a banner stating “Proof That America Condones Sodomy” and a sign stating “Blessed the Nation Whose God is the Lord.” After an altercation with police, the two were arrested for disorderly conduct. The museum’s director testified the two were advancing on the mayor with their banner and sign while “haranguing and shouting in his face.”

Sucec and Mayon claimed they were making a peaceful demonstration.

Similar problems occurred at annual Gay Pride events held in the city park in July 2000, 2001, and 2002, when police officers prevented some of the plaintiffs from distributing religious tracts and there were arrests for disorderly conduct.

The trial court judge ruled that some Harrisburg laws were too restrictive, especially one that required anybody giving a speech in a public park to obtain a permit in advance, but upheld the law requiring a permit to hold events in the park involving more than 20 people, and refused to enjoin the police from enforcing the disorderly conduct statute against the plaintiffs.

In affirming these rulings, the court of appeals found the Boston St. Patrick’s Day ruling, known as Hurley v. GLIB, to be decisive on the question whether the city, through its police, could help to exclude anti-gay protesters from entering the area of the park covered by a Gay Pride Day event permit.

“The Supreme Court addressed the propriety of a permit-holders’ ability to exclude whomever they choose from permitted events in a unanimous decision in Hurley,” Smith wrote. “In this analysis the Court wrote that forcing the organizers of the parade to include undesired messages in their efforts 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.’”

The plaintiffs had argued that they should not be subject to prosecution for disorderly conduct unless they actually intended to harm somebody. The court rejected this interpretation of the disorderly conduct law, noting that the trial judge “implicitly found that Appellants intended to breach the peace and cause inconvenience and annoyance.” The court noted that several instances involved direct refusals, sometimes accompanied by physically threatening activity, to comply with lawful police orders.

This case points up the content-neutral operation of the First Amendment and the various exceptions to its categorical protection for free speech on matters of public concern. Governments can control access to a “public forum” with respect to time, place, or manner of speech, in a content-neutral way, in order to preserve public order.

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