Circuit Court Gives Anti-LGBTQ Street Preachers Free Rein to Intimidate Pride Festival Attendees

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Analysis LGBTQ

Circuit Court Gives Anti-LGBTQ Street Preachers Free Rein to Intimidate Pride Festival Attendees

Lisa Needham

The decision raises thorny questions about how to balance competing concerns about free speech.

Pride festival celebrations have become a staple of many major metropolitan areas. However, as LGBTQ people have increasingly been able to openly gather and celebrate, self-styled “street preachers” have fanned out across the country to harangue them.

These preachers often feign as if they’re trying to “save” Pride attendees, although what they really want is to “knock the queer right out of them” or to tell LGBTQ people they are “wicked and dirty.” But it’s harassment, plain and simple. Now, a recent U.S. Court of Appeals for the Sixth Circuit decision shows that some courts are willing to give those street preachers free rein to intimidate and harangue Pride festivalgoers. The decision raises thorny questions about how to balance competing concerns about free speech.

Nashville, Tennessee, has held Pride celebrations since 1988. The 2015 Nashville Pride festival was an especially notable year, as the U.S. Supreme Court declared same-sex marriage legal on June 26. Over 18,000 people attended Nashville Pride that year. With it being such a momentous occasion, it’s no surprise that Nashville was also targeted by street preachers.

The plaintiffs in the Sixth Circuit case were two men, John McGlone and Jeremy Peters, who regularly go to public events and preach, using bullhorns and other amplification to get their message across. At the 2015 Nashville Pride, they set up their equipment on the sidewalk right next to the festival.

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Nashville Pride is a ticketed and permitted event. The event itself was marked off with fences and barricades. The permit issued by the city, however, covered a slightly larger area than the barricaded ticket portion, and included the sidewalk that McGlone and Peters wanted to occupy.

The legal status of the sidewalk in this instance was a complicated one. It wasn’t within the event itself, yet it fell within an area that Pride had secured. What that meant was that people could be on the sidewalk without a ticket to Pride, but that Pride’s security team treated that area as a portion of the festival. The sidewalk was used for people lining up to get into the festival, but its proximity also made it irresistible for McGlone and Peters.

On the second day of Pride, McGlone, Peters, and some of their supporters went to the sidewalk in question, set up their bullhorns and amplifiers, and started to preach. Nashville police informed them they’d have to move away from the sidewalk or they would be arrested. They did so, and proceeded to preach for the next four to five hours, using bullhorns all the while.

The central question of this lawsuit was whether the city had the right to ask the street preachers to move a short way across the street. And that’s where the difficult free speech questions arise.

While Americans generally enjoy an unfettered right to free speech, however hateful, the government is allowed in certain occasions to restrict how and when you speak. It generally can’t restrict the content of your speech—barring such things as threats—but it can engage in actions that dictate where you do it, as was the case here.

When courts analyze this sort of case, they engage in what is known as a forum analysis. First, they ask whether the communication—in this case, the street preachers’ virulent anti-homosexuality message—is protected by the First Amendment. There is no question it is, so the court here moved on to the second question, which is an inquiry into the type of forum in which the speech is taking place. A forum refers to the nature of the place the speech occurs. A “traditional public forum” is a place like a sidewalk or a town square, and speech enjoys maximum protection in those locations. Again, here there was no question that the location the preachers wished to occupy was a traditional public forum. With that, then, this case turned only on the third prong of a forum analysis: whether the government had the right to exclude speakers from the forum.

In order to address that portion of the forum analysis, the court has to look at whether the government restriction is content-based—that it restricts speakers based on what they have to say—or content-neutral—that it restricts speakers based on other factors. If it is the former, the court examines that restriction with strict scrutiny, which means the government has to prove the speech restriction is very narrowly tailored to achieve the government’s interest. For example, applying strict scrutiny, the U.S. Supreme Court has held that it is permissible to restrict political speech within 100 feet of a polling booth, even though that restriction is based on barring a specific type of speech. If it is the latter, the court looks at it through the lens of intermediate scrutiny, and the restriction is permissible if it serves the government’s interest and leaves open “ample channels” of communication.

Here, the majority found that the government’s representatives—in other words, the police—erred in telling McGlone and Peters they had to move. The judges said that the restriction of their street-preaching speech was content-based and therefore strict scrutiny applied. According to the majority, had McGlone and Peters not been preaching an anti-LGBTQ message, they would not have been asked to move. This decision, therefore, forces Pride festivals—at least those in the states covered by the Sixth Circuit (Kentucky, Michigan, Ohio, Tennessee)—to allow speech at their festivals that is directly opposed to their overall message of inclusivity. Under this decision, individuals that preach hate can, at a minimum, be allowed to do so in a permitted space. While Nashville Pride is a ticketed event, and could therefore restrict any non-ticketholder from the Pride event itself, other Pride celebrations are free. This decision might force those events to allow anti-LGBTQ speech within the actual festival. Moreover, they have to allow speech that is amplified, which could actively disrupt Pride activities and possibly actively deter attendees.

Part of how the majority got to this decision is by saying it was substantially different from a well-known Supreme Court case, Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (GLIB) Inc. In 1993, an LGBTQ group, GLIB, in Boston sued the organizers of the Boston St. Patrick’s Day Parade when those organizers refused to allow GLIB to march in the parade because the organizers did not support the group’s pro-LGBTQ message. At this time, Massachusetts already had an anti-discrimination law in place that forbade discrimination on the basis of sexual orientation. Regardless of that law, the Hurley majority held that the parade organizers couldn’t be forced to include a group that had a message that the organizers didn’t wish to convey. Forcing the inclusion of GLIB, the majority wrote, could have created the impression that the parade organizers supported the message.

In the case of McGlone and Peters, the Sixth Circuit majority interpreted Hurley in an odd and convoluted way. They held that the Hurley case was about forcing organizers to allow GLIB to participate, where here McGlone and Peters only wanted to speak. That ignores, however, that McGlone and Peters sought to place themselves within the permitted areas of the festival, rather than directly outside. To ignore that requires some fairly elaborate mental gymnastics.

In a lengthy dissent, Judge Karen Nelson Moore elaborated on why the majority’s decision was so wrong. First, she noted that it is permissible in some situations for the government to regulate speech because the content of that speech has a substantial effect on its surroundings. For example, municipalities can, in certain instances, ban picketing in front of a specific home, because doing so could excessively affect residential privacy. And of course, buffer zones—spaces around abortion clinics where protesters are not allowed to go so that patients can access the clinic—are permissible.

Indeed, it’s hard to see how the situation in this case is meaningfully different from buffer zones. The Nashville Pride organizers secured a permit that covered the sidewalk because it was an area for lines to form and for people to meet up before entering the ticketed portion of the festival.

The dissent also noted that there was no evidence in the record that McGlone and Peters were asked to move because of the content of their speech. Rather, they were asked to move because their amplified speech within the permitted area was disrupting the Pride event. Indeed, if the street preachers had merely carried signs or passed out leaflets, the Nashville Metro police indicated they would not be asked to leave because it does not allow permit holders “unfettered discretion to exclude citizens from public areas if those public areas are permitted.”

Here, the street preachers amplified their speech via bullhorns and wished to stand directly adjacent to the festival, where people waited to get in. It’s hard to imagine something more disruptive.

Because the restriction was content-neutral, and was instead based on minimizing disruption, the dissent urged that a lower standard of scrutiny should be applied to this case. Under that standard, as long as Nashville provided ample other channels for the street preachers to spread their message, the restrictions would be acceptable.

There’s no doubt that the street preachers were still able to reach festivalgoers. They were relocated to a space where they could still be heard by Pride attendees, thanks to their use of bullhorns. They stood just across a closed-off street from the festival gates. The street preachers admitted they were able to “engage” with at least two dozen attendees or supporters of the Pride festival. In other words, the dissent notes, the street preachers were entitled to a channel for their speech, but not the biggest channel simply because they wanted it.

At root, the goal of these sorts of street preachers is to disrupt Pride festivals. They shout slurs at attendees, tell festivalgoers LGBTQ people are an abomination against God, and scream directly at people and tell them they are hellbound. That’s the exact opposite of the message of Pride.

There’s no dispute that Pride festivals must endure this hateful speech at the periphery of the celebrations, but they should not be required to accommodate, host, and foster it. Unfortunately, with the Sixth Circuit disagreeing, Pride festivals will be doing just that.

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Gay Pride, Law and Policy