The Truth About the Philadelphia Outfest Arrests
Hate Crimes Laws Are Not Used to Punish Speech
In June 2006, a coalition of right-wing conservative organizations, including the anti-gay American Family Association, targeted select states with newspaper ads urging citizens to contact their senators and demand they vote against federal hate crimes legislation.
These ads, taken out in the name of the "Campaign for Blind Justice," attempted to exploit the false but common argument that this legislation will burden free speech, somehow turning federal authorities into "thought police." To bolster this argument, they cited the arrest of several members of the group "Repent America" at the October 2004 Philadelphia Outfest, a large annual gay, lesbian, bisexual and transgender block party.
Here are the true facts regarding the incident:
The afternoon of Outfest, a group of 11 demonstrators entered the eight-block area where Outfestwas being held. The leader of the demonstrators carried a Bible in one hand, and a bullhorn in the other. A frequent presence at gay, lesbian, bisexual and transgender events, the members of Repent America had previously touted their message — "Homosexuality Is Sin, Christ Can Set You Free" — at many gay-pride events.
Soon after their arrival, the demonstrators were surrounded by Outfest supporters armed with pink whistles and 8-foot boards of pink insulation mounted on sticks. Eventually, a crowd formed and in an effort to prevent violence, police instructed the demonstrators to go to the edge of the Outfest area. The demonstrators ignored three orders to move and were told by police they would be arrested if they refused to comply. At this point, members sat down in the street, forcing police to remove them.
The group was charged with numerous offenses including criminal conspiracy, obstructing a highway, failure to disperse, disorderly conduct and violating Pennsylvania’s hate crimes law, referred to as ethnic intimidation. Four of the anti-gay advocates were barred from attending future organized gay, lesbian, bisexual and transgender events as a condition of bail.
Pennsylvania’s hate crimes law specifies a group of violent crimes, including arson and destruction of property, that can carry an additional charge of ethnic intimidation if committed "with malicious intent toward the actual or perceived race, color, religion, national origin, ancestry, mental or physical disability, sexual orientation, gender or gender identity of another individual or group of individuals."[1] This charge is added to the underlying offense, for example, the arson. To be convicted of ethnic intimidation, a person must be convicted of the underlying offense. In other words, it is only violent behavior that is punished, not mere thoughts or speech.
After being charged, the individuals associated with Repent America requested that a federal court block their prosecution in state court on the charges resulting from the arrests at Outfest. The federal judge refused to intervene. Soon after, a state judge revoked the bail condition that had ordered the four of the antigay advocates away from organized gay events, calling the restriction an unreasonable restraint on free speech.
On Feb. 17, 2005, the state court, finding no violation of the Pennsylvania hate crimes law, dismissed all criminal charges against the remaining anti-gay advocates. In dismissing the case, Philadelphia Common Pleas Court Judge Pamela Dembe said that the demonstrators simply had been exercising their First Amendment rights. [2] The members of Repent America have since filed suit against the city, alleging a violation of their civil rights.
But the real story of this case is how well the criminal justice system worked. When a judge reviewed the charges, she properly recognized that what had occurred was not a hate crime — and she dropped the charges. The actions of the protesters, though confrontational and offensive, were not typical of the kind of conduct which hate crimes laws were designed to address. Far from demonstrating the infirmities of hate crimes laws, the Outfest case actually serves as a demonstration that these laws will be properly applied.
Some state hate crimes laws have been on the books for 25 years. One isolated case of prosecutorial overreaching does not make a very compelling case against hate crimes laws — especially when the federal government, 45 states and the District of Columbia have enacted such laws, when they are supported by every major law enforcement organization in America and when a unanimous Supreme Court approved their constitutionality in 1993.
[1] 18 Pa.C.S. § 2710 (2005).
[2] Larry Eichel, "Charges Against 'Philadelphia 4' Tossed; A judge Said Activists Who Protested a Gay Event in Center City Were Exercising Their Rights," The Philadelphia Inquirer, Feb. 18, 2005.