Statement of U.S. Attorney McSwain Regarding the Protection of Philadelphia Residents’ First Amendment Rights and the Filing of a Statement of Interest in "Philadelphia Vietnam Veterans Memorial Society v. James Kenney"

PHILADELPHIA – United States Attorney William M. McSwain convened a press conference today to announce the filing of a Statement of Interest in a civil lawsuit filed against Philadelphia Mayor James Kenney and his Managing Director, challenging the City’s “Event Moratorium.” U.S. Attorney McSwain addressed the Moratorium’s unconstitutional double standard and the important role that the federal government has in safeguarding all citizens’ First Amendment rights, regardless of the content of the speech at issue. 

Remarks as Prepared for Delivery 

Earlier today, the Philadelphia Vietnam Veterans Memorial Society (“PVV”) filed suit in federal court in Philadelphia against Mayor Kenney and his Managing Director, alleging a violation of the organization’s and others’ First Amendment rights, based on the City’s refusal to grant any permits for parades or other expressive gatherings on public property. Also today, the U.S. Department of Justice and the U.S. Attorney’s Office filed a “Statement of Interest” in the case in support of the PVV. One of our important responsibilities at the U.S. Attorney’s Office is to safeguard civil rights, including First Amendment rights. The purpose of my remarks is to explain how this Statement of Interest does exactly that. 

This is a case about more speech, not less. It is also a case about Philadelphia’s double standard whereby it treats some types of speech (protests) much more favorably than others (parades and other expressive gatherings that require a permit). There is no possible public health justification for this double standard. The City’s policy of banning parades and other expressive gatherings fails as a matter of constitutional law and basic common sense. Critically, the solution to eliminating this double standard is not to discourage or limit protests – two wrongs do not make a right. Instead, the solution is to allow all speakers to express themselves in accordance with their constitutional rights. The City’s illogical and unconstitutional ban on parades and other expressive gatherings should be eliminated. Again, more speech is the answer, not less.

The United States is committed to protecting the freedoms guaranteed by the First Amendment, which lie at the heart of a free society and are, in the words of James Madison, the “effectual guardian of every other right.” In the midst of the COVID-19 pandemic, the United States has a strong interest in the development and maintenance of public health policies that protect citizens from harm while still respecting their First Amendment rights, including the peaceful exercise of freedom of speech, freedom to assemble, and freedom to petition the government on matters of public importance in a traditional public forum.

The City of Philadelphia has announced an “Event Moratorium,” imposing a blanket ban on issuing permits for any large public gathering – initially of more than 50 people, subsequently increased to 150 people. While the City has allowed unpermitted demonstrations to occur, it has banned certain types of public gatherings, such as parades, which are unquestionably protected by the First Amendment. Parades come in many shapes and sizes, with myriad messages. Some are groups not much larger than 150 people and seek to express solemn messages. And, by their nature, parades almost always necessitate street closures and other safety measures, therefore requiring coordination and planning with the City through a permitting process. To hold a parade without coordination with the City is to invite disruption, or even disaster.

The demonstrations that ensued in Philadelphia since late May have shown the enduring importance of the First Amendment and the rights to free speech and free assembly. But those rights apply to all forms of speech and assembly; it is unconstitutional for the Philadelphia municipal government to shut down certain types of speech, while allowing other types of speech to proceed unchecked. More to the point, the City allows (and even encourages) large protests, but not parades or other expressive gatherings. This raises the specter of viewpoint discrimination – that the City is favoring certain kinds of speech because of its message.

Thus, while Philadelphia officials continue to bless unpermitted protests, the City has stated that it will deny a permit to groups seeking to engage in other forms of First Amendment-protected activity. The supposed reason for the blanket permitting ban is to prevent the spread of COVID-19 by eliminating large outdoor gatherings. By contrast, for those willing to take to the streets without a permit, a group of any size can do so – even if that group ignores social distancing, masking, or any other CDC guideline. This is true even though the same concerns about virus transmission would obviously apply with equal force to both situations. The City’s disparate treatment (and double standard) is illogical, favors particular speakers and issues, does not serve public health purposes, and is unconstitutional.

Indeed, the Supreme Court has often struck down ordinances where the distinction between two types of speech or expression is unrelated (or only tangentially related) to the government’s asserted interest. This is especially so where a less blunt approach could achieve the same ends. In short, if the City’s concern is that a large parade could cause an increase in transmission of COVID-19, a blanket ban for groups over 150 is not narrowly tailored to serve that interest, especially while also allowing other large gatherings to take place without permits. Moreover, when contrasted with the City’s recent decision to allow gatherings of up to 7,500 people in certain outdoor venues (including for Eagles games), the Event Moratorium is all the more unjustified. Rather than a blanket ban, the Constitution requires a narrowly tailored approach that might, for example, allow event organizers an opportunity to demonstrate appropriate safety measures.

At this time, I am happy to take any questions you have.