When federal district court Judge Lawrence F. Stengel last year dismissed a claim that Philadelphia officials infringed on Christian activists' freedom of speech during a 2004 gay-pride festival, the street evangelists vowed to appeal.
Oral arguments for that appeal were heard for an hour Monday afternoon by a three-member panel of the U.S. Court of Appeals for the Third Circuit.
Ted Hoppe, the street evangelists' attorney, said the primary issue in the civil suit is the right of free speech in public without penalty of police action.
The 11 street evangelists associated with Repent America - including Mark Diener of Manheim Township and Jerry Fennell Jr. of Denver - were arrested and charged with three felonies and five misdemeanors for allegedly trying to incite a riot when they preached against homosexuality at Outfest National Coming Out Day Festival in October 2004.
Fennell's criminal charges were dropped at a Dec. 14, 2004, preliminary hearing, and Diener's criminal charges were dismissed by Philadelphia Court of Common Pleas on Feb. 17, 2005, after a judge reviewed video of the incident and said the Repent America members did nothing wrong.
Their arrests "do not comport with the law," Hoppe said. Evangelists "have a right to engage in free speech. They have a right to be there. Police cannot restrict that right simply because the hearer doesn't like it."
The evangelists filed a civil suit against City of Philadelphia and Philly Pride after the dismissal of the criminal charges in 2005.
Hoppe said he was "cautiously optimistic" about the outcome of the appeal, which was argued before federal Judges Dolores Sloviter, Walter Stapleton and D. Brooks Smith.
The defense argued that just as the municipal permit holder of a parade is allowed to exclude those who might march in that parade, the permit holder for the street festival should be allowed to exclude people from participating in its festival, attorney Jeremy Frey said. Frey represents Outfest organizer Philly Pride, its legal adviser Charles Bolz and executive director Fran Price.
Frey said he was "confident that the decision of the District Court granting our motion of summary judgment (for dismissal of the lawsuit) will be affirmed by the Third Circuit."
Because there is no time limit for the judges to file their written decision, attorneys for the defense and plaintiffs agreed the decision most likely would not be made before summer and perhaps not until fall.