U.S. Department of Justice
United States Attorney
Eastern District of Pennsylvqnia
William M. McSwain
United Slales Attorney

615 Chestnut Street
Suile I 250
Philadelphia, Pennsylvania I 9 I 06-447 6
(215) 861-8200

July 22,2020

Marcel S. Pratt, Esquire
Philadelphia City Solicitor
City of Philadelphia Law Department
1515 Arch Street
Philadelphia, PA 19102
Dear Marcel:

I am writing to follow up on our conversation from last Thursday about the City's
policy purportedly banning outdoor gatherings of more than 50 people (and indoor gatherings
of more than25 people) through February 28,2021. I appreciate, as always, your
professionalism and commitment to open dialogue with me and my Office.
The same day that we spoke, the Mayor stated that the "City's Offrce of Special Events will
not accept, review, process, or approve applications, issue permits, or enter into agreements for
special events or public gatherings of 50 people or more[.]"l But the Mayor also specifically stated
that he would not restrict the public demonstrations - regardless of size - that have been taking place
in the City's streets since the end of May in response to the killing of George Floyd.
The City's Office of Special Events appears to echo this policy. While the City ordinarily
requires permits for demonstrations, it will apparently make "exceptions . . . if the proposed
Demonstration is a spontaneously-planned event in response to a recent occurrence (to coincide with
a recent or future political or other announcement, decision, determination, or declaration)."2 In other
words, the City plans to allow public gatherings that advance certain types of speech, but will
prohibit public gatherings that advance other types of speech or protected forms of expression.

I commend the City for its efforts to support peaceful public protest in Philadelphia
during the COVID-l9 pandemic, and I join the people of Philadelphia, and across our
country, who were disturbed by the killing of George Floyd. I also appreciate that you have
solemn duty to protect the health and safety of Philadelphia residents and visitors. You and
other leaders around the country must balance multiple competing interests and evaluate
information about COVID-l9, and then use your best judgment about different possible
courses ofaction.
I

hffps://www.fox29.com/news/philadelphia-issues-moratorium-on-large-public-events-through-feb-2021-amidcoronavirus-pandemic
2
https://phillymdoevents.files.wordpress .com/202010112020-special-event-application-final.pdf

a

 Marcel S. Pratt, Esquire
July 22,2020
Page Two

difficult task, the City must nonetheless ensure that its policies do not
violate the First Amendment, which does not allow the City to play favorites when it comes to
speech on its public streets. Under the First Amendment, the City "has no power to restrict
expression because of its message, its ideas, its subject matter, or its conterrt.." Ashcroft v.
ACLU,535 U.S. 564,573 (2002).Instead, when dealing with a traditional public forum, such
as the public streets of Philadelphia, the City's "right to limit protected expressive activity is
sharply circumscribed: It may impose reasonable, content-neutral time, place, and manner
restrictions." Capitol Square Review & Advisory Bd. v. Pinette,515 U.S. 753,761(1995).
The City would therefore violate the First Amendment by prohibiting even "unpopular"
speech, because doing so constitutes unlawful viewpoint discriminatron. Nat'l Inst. of Family
& Life Advocates v. Becerra,138 S. Ct.236I,2374 (2018).
Faced with that

The City's announced policy is, in my view, plainly unconstitutional. It would prohibit
whole myriad of public gatherings (such as Labor Day gatherings, 9/11 memorials, the
Puerto Rican Day parade in September, Veteran's Day gatherings, the Thanksgiving Day
parade, the New Year's Day parade, or religious-themed festivals or gatherings), but would
allow public gatherings on issues that spark a so-called "spontaneously-planned event" that is
"in response to a recent occurence." The subtext, of course, is clear: the City has seen a surge
of protests inspired by the killing of George Floyd and does not want to be perceived as
prohibiting those gatherings, regardless of any possible public health consequences, but has
decided to prohibit other forms of protected speech.
a

The First Amendment, however, does not allow the City to pick and choose like that.
The First Amendment protects peaceful public speech on any topic regardless of the views
expressed, regardless of whether the govemment views the speech as important, and
regardless of the popularity of the speech. Unlike the City's announced policy, the First
Amendment does not discriminate.
Despite Mayor Kenney's nod to the First Amendment in his announcement, the City's
proposal creates an unconstitutional hierarchy in which the City decides what speech is
worthy of expression and what is not. The First Amendment does not work that way. When it
comes to speech, the City cannot favor what it considers to be popular over what it considers
unpopular, or worthy over unworthy.
The First Amendment also protects religious observers against unequal treatment. The
City therefore may not discriminate against religious gatherings compared to other
nonreligious gatherings that have the same effect on the government's public health interest,
absent compelling reasons. See Church of the Lukumi Babalu Aye v. City of Hialeah,508U.S
520, s33 (1993).

Evidently, the City has concluded that the possible health risks do not justiff
prohibiting spontaneous gatherings in "response to a recent occurence." I do not take issue
with that decision. But consistent with the First Amendment, the City cannot ban other forms
of protected expression by shutting down the City's permitting process. The vagueness of

 Marcel S. Pratt, Esquire
July 22,2020
Page Three

what constitutes a "response to a recent occuffence" exacerbates the problem, creating a risk of
liability that will surely deter many groups, especially those less sure that City leaders will approve of
their message, from holding a large-scale event without a permit. In short, the City's policy of now
refusing to accept permit applications while allowing certain groups to take to the streets without a
permit would have an unconstitutional effect on many protected forms of speech. Finally, I note that
even from a public health perspective, a supposedly spontaneous outdoor gathering in "response to a
recent occurrence" poses no less risk to public health than a planned gathering held with a permit
when both gatherings occur outside.

I believe we can resolve this issue expeditiously, in an amicable manner. The City can
fix the constitutional infirmity by announcing a new policy that treats all forms of First
Amendment protected activity equally, and I will make myself available at your convenience
to discuss the issue.
Thank you again for engaging in this dialogue, and I

will look forward to hearing from

you.
Sincerely

'L,JLA.tdWILLIAM M. McSWAIN
United States Attorney

cc:

Eric S. Dreiband, U.S. Assistant Attorney General for Civil Rights Division,
Department of Justice