# Startzell v. City of Philadelphia, Pennsylvania > Court of Appeals for the Third Circuit · July 15, 2008 · 533 F.3d 183 URL: https://www.frixlaw.com/law-library/cases/9574805 ## Case - **Full name:** 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:** Court of Appeals for the Third Circuit - **Decided:** July 15, 2008 - **Citations:** 533 F.3d 183; 2008 U.S. App. LEXIS 14984; 2008 WL 2736293 - **Precedential status:** Published - **Opinion:** Concurrence by Stapleton - **Judges:** Sloviter, Smith, Stapleton - **Cited by:** 586 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9574805 ## How later opinions describe it (automated extraction) - holding that “[t]he City’s actions in this case were narrowly tailored to serve its significant interests” because the officers “did not initially ban [plaintiffs’] speech” but “let [plaintiffs] move about freely” through the festival “until [they] . . . blocked access to vend… - stating that, for the purposes of a selective enforcement claim, “[p]ersons are similarly situated under the Equal Protection Clause when they are alike in all relevant aspects” (internal quotations omitted) - stating that “when protestors move from distributing literature and wearing signs to the disruption of the permitted activities, the existence of the permit tilts the balance in favor of the permit-holders” - finding that police had probable cause as a matter of law for disorderly conduct in part because large crowd at celebratory event was becoming hostile largely as a result of plaintiffs’ conduct ## Opinion text STAPLETON, Circuit Judge, 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. 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. *206 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 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 , 69 S.Ct. 894 , 93 L.Ed. 1131 (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. 200-01; e.g., Forsyth County v. Nationalist Movement, 505 U.S. 123, 130 , 112 S.Ct. 2395 , 120 L.Ed.2d 101 (1992). Indeed, I believe it clear that the state can 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., Olivieri v. Ward, 801 F.2d 602 (2d Cir.1986); Sistrunk v. City of Strongsville, 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 nonexclusive 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. *207 In Cantwell v. Connecticut, 310 U.S. 296 , 60 S.Ct. 900 , 84 L.Ed. 1213 (1940), 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: [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 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 307-08 , 60 S.Ct. 900 (footnote omitted). The Supreme Court reached similar conclusions in Cox v. Louisiana, 379 U.S. 536, 551 , 85 S.Ct. 453 , 13 L.Ed.2d 471 (1965), and Terminiello, 337 U.S. at 5 , 69 S.Ct. 894 . 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 . Based on my conclusion that Repent America’s members uttered "fighting words” during their demonstration, I believe that there was sufficient probable cause to arrest *208 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9574805. Public record. Not legal advice.