Mayor Jim Kenney’s policy of prohibiting large permitted events like the Mummers Parade while allowing spontaneous protests over the police killing of George Floyd in Minneapolis is “plainly unconstitutional,” U.S. Attorney William M. McSwain told the city administration Wednesday.
“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,” McSwain wrote in a letter to City Solicitor Marcel Pratt. “The First Amendment, however, does not allow the city to pick and choose like that.”
Attempting to slow the spread of the coronavirus, Kenney last week announced that the city will not issue permits for large events through Feb. 28, 2021. That effectively cancels traditions like the Thanksgiving Day Parade and the Puerto Rican Day Parade, and prohibits city-sanctioned block parties. Kenney, however, said the city will not prevent spontaneous protests because they are considered protected speech under the First Amendment.
McSwain, an appointee of President Donald Trump and the top federal prosecutor for the Philadelphia region, said that doesn’t pass legal muster, arguing that cultural parades may also be considered protected speech.
Some of those events regularly include overtly political speech and criticism of public officials, which the First Amendment was designed to protect. The Mummers Parade, for instance, includes performances parodying local politicians.
Kenney spokesperson Mike Dunn said the administration “values and respects the First Amendment and the resulting rights and protections to our residents,” and said it will offer a fuller response to McSwain’s letter in the near future.
“The city is continuing to balance these rights and the significant health risks posed by the pandemic,” Dunn said in a statement. “We are trying to save lives, and we are confident that this approach protects the residents of this city from a surge in COVID-19 while safeguarding the constitutional right to free speech.”
Dunn added that city officials “sincerely hope that his letter is not an attempt by the Trump administration to discourage peaceful protests in Philadelphia.”
The Kenney administration’s policy differentiates between “a spontaneously planned event in response to a recent occurrence” and long-planned gatherings like parades, music festivals, the Broad Street Run, and the Philadelphia Marathon. By extending the moratorium through February, Kenney made Philadelphia’s ban on large events one of the longest in the country.
After the announcement, business owners said they feared it would further slow the city’s economic recovery. Public health officials, however, have said prohibiting large events is key to controlling the spread of the virus, which as of Wednesday had infected at least 28,874 Philadelphians and killed 1,673.
In Philadelphia, history is on their side. The 1918 Spanish flu pandemic struck Philadelphia harder than any other U.S. city in part because of the Philadelphia Liberty Loans Parade, which promoted bonds to support the Allied effort in World War I and drew about 200,000 attendees.
McSwain wrote that the issue could be resolved “amicably” if Kenney changed his policy to allow the large permitted events he has prohibited. The letter obtained by The Inquirer does not say what McSwain may do if the mayor does not change the city’s approach to large events. If McSwain wanted to press the matter further, the federal government could sue the city in an attempt to have a judge declare the policy unconstitutional.