U.S. Attorney William M. McSwain Announces DOJ Statement of Interest Filed in Lawsuit Challenging Philadelphia’s Public Event Moratorium

PHILADELPHIA – United States Attorney William M. McSwain announced that the U.S. Department of Justice has filed a Statement of Interest (“SOI”) today in a case pending in the Eastern District of Pennsylvania that challenges the City of Philadelphia’s “Event Moratorium” that prohibits issuing permits for expressive gatherings of 150 or more people on public property. The lawsuit claims that the Moratorium violates the rights of freedom of speech and freedom of assembly guaranteed by the First Amendment. 

The SOI was filed in support of the plaintiff, the Philadelphia Vietnam Veterans Memorial Society (“PVV”), an organization that seeks to promote, honor, and dignify the memory of military veterans who served in Vietnam. PVV does so by sponsoring honor guards and rifle teams to attend veteran burial details and by participating in parades and other public events. PVV contends that it and other groups are adversely impacted by the City’s blanket ban on issuing permits for public gatherings.

On July 14, 2020, in response to the COVID-19 pandemic, the City of Philadelphia instituted the Event Moratorium, imposing a blanket ban on issuing permits for any public gatherings through February 2021. While the City claims that the Event Moratorium does not apply to First Amendment protected activity, nevertheless it will not issue permits for any such activity – and it simultaneously cancelled all festivals, parades, and public gatherings on City property initially involving 50 (but now 150) people.

At the same time that it has imposed the Event Moratorium, the City has explicitly allowed a group of any size to take to the streets without a permit if their stated purpose is to  protest -- even if that group ignores social distancing, masking, or any other CDC guidelines. This is true even though concerns about virus transmission obviously apply with equal force to groups protesting without a permit and those parading with one. As set forth in the SOI, this disparate treatment (and double standard) is illogical, not narrowly tailored to serve a legitimate public health purpose, and unconstitutional.

“This is a case about more speech, not less,” said U.S. Attorney McSwain. “The City’s double standard – whereby is treats protests one way and any other First Amendment gathering a completely different way -- is illogical, favors particular messages, does not serve public health purposes, and is unconstitutional. The solution is not to limit protests. Rather, the solution is to eliminate the Event Moratorium and allow all speakers to express themselves in accordance with their constitutional rights.”

“The First Amendment to United States Constitution makes illegal any attempt by government to abridge the rights of the people to speak and assemble peacefully.  Our Founders established these rights to enshrine in our law a very simple ideal:  tyranny has no place in this free country.  At a small town west of Philadelphia, at Gettysburg in 1863, President Abraham Lincoln observed that this United States of America was ‘conceived in liberty,’ and he challenged all of us ‘to be dedicated’ to a ‘new birth of freedom.’  We must and do accept President Lincoln’s challenge,” said Assistant Attorney General Eric Dreiband for the Civil Rights Division. “The Philadelphia Vietnam Veterans Memorial Society honors those brave patriots, living and dead, who fought, suffered, and died for our freedom and for the freedom of all humanity.  The United States Department of Justice stands with them, and we will continue to fight for their liberty and the liberty of all people.”

The case is docketed as Philadelphia Vietnam Veterans Memorial Society v. Kenney, et al., Civil Action No. 20-cv-05418.