Federal District Court Judge Lawrence F. Stengel Thursday dismissed a claim that Philadelphia officials infringed on Christian activists' freedom of speech during a 2004 gay pride festival.

The civil lawsuit was filed in 2005 by 11 street evangelists, including two from Lancaster County, after their arrests at a gay pride event in 2004. In the suit, the evangelists claimed police silenced them because of the content of their message.

Mark Diener of Manheim Township, formerly of Ephrata, and Jerry Fennell Jr. of Denver were among 11 street evangelists associated with Repent America who were arrested and charged with three felonies and five misdemeanors each for allegedly trying to incite a riot when they preached against homosexuality at Outfest National Coming Out Day Festival in October 2004.

Fennell's charges were dropped at a preliminary hearing in December 2004, and Diener's charges were dismissed by the Philadelphia Court of Common Pleas in February 2005 after a judge reviewed videotape of the event and ruled the Repent America members did nothing wrong.

However, Stengel ruled Thursday police did have the authority to remove the Repent America members from the street festival and that police and other officials had not conspired with Philly Pride Presents, which organized the event, to keep the group from speaking at the festival.

"The government has a limited ability to restrict free speech rights, even in a public forum," Stengel said.

"Once the city (of Philadelphia) had permitted the homosexual event, it was empowered to enforce the permit by excluding persons expressing contrary messages," he said.

Stengel noted that in 1995 the U.S. Supreme Court ruled organizers of private events could not be compelled to include a group of gay, lesbian and bisexual descendants of Irish immigrants in their annual St. Patrick's Day parade because organizers had a right to exclude messages with which they did not agree.

The court, he said, recognized it was essential to the protection of free-speech rights to give an event organizer the right to shape the message of an event.

Stengel also said Repent America could have requested a permit for a counterprotest, but did not.

"This is an important decision that supports the First Amendment rights of organizers of all permitted events," Jeremy D. Frey, an attorney for Philly Pride Presents, told the Philadelphia Inquirer for Tuesday's editions.

Diener said he was "very surprised" Stengel ruled against Repent America.

"We really thought that a conservative Republican from Lancaster who was a Bush appointee would have gone with us," Diener said Tuesday. "But he really went with the other side. ... He was seemingly endorsing (the homosexual movement). He was not neutral to their cause, but affirmed their movement."

A civil suit Repent America pursued in Harrisburg did go their way, he said. The city settled the suit, agreeing to pay court costs incurred by members of the group arrested for a noise ordinance on a public sidewalk, Diener said.

"Two cities with two very different outcomes," Diener said. "The only difference was that we were not inside the Harrisburg Pridefest, but in Philadelphia we were inside the cordoned-off area on a public street."

When Repent America arrived at the Philadelphia event, Diener said, he and Fennell intended to stay outside the cordoned-off area, but the police invited them inside.

Stengel's ruling that Repent America had "no constitutional right to drown out another person's speech" with their bullhorns comes "dangerously" close to legislating from the bench, Diener said. Stengel has "very new ideas with very little case precedent."

Diener said Stengel's ruling allows "permits to trump the First Amendment. ... Not only is it a bad decision, but it is setting bad precedent."

Fennell said he was shocked by the decision.

"I was not 100 percent sure it would turn out positive, but the decision was a surprise," he said. "I'm still in the process of digesting it."

Fennell said if the lawsuit had gone to trial and resulted in an unfavorable decision, "then so be it," but at this stage in the process it was shocking.

Stengel originally ruled in their favor on the conspiracy charge, Fennell said.

"He said this conspiracy charge could have some teeth to it, but then he came back and undid everything," Fennell said. "It was just a shock."

Fennell said parts of Stengel's ruling led him to believe Stengel didn't have all the facts correct.

Scott Shields, attorney for Repent America, said "in a sense we're profoundly disappointed with the misinterpretation of the law, but also misapplication of what we believe the law to be and the true facts. It makes us wonder whether we were dealing with the same case the court dealt with. (Stengel) completely ignored the facts the defendants even agreed on."

Shields, on the other hand, said they weren't completely surprised by the outcome because there "is a movement afoot to stifle any type of opposition to the homosexual agenda and to being politically correct. This is happening all over the country."

The Christian activists will appeal the decision to the Third Circuit Court.

"Most likely within the next week or so, we'll put together something in earnest," Shields said. "We're still digesting the 52-page opinion."

In the meantime, Shields said, they will ask the court for an injunction to stay the decision so the group can express its message at Philadelphia Equality Forum, a celebration of international gay culture, in May.


Lori Van Ingen's e-mail address is lvaningen@lnpnews.com.