Insider: Kenney Can Reform the Mummers — Legally

He and the parade’s sponsor just have to use the power of the purse.

Finnegans New Year’s Brigade’s Caitlyn Jenner performance on Friday. | Photo by Dan McQuade

Finnegans New Year’s Brigade’s Caitlyn Jenner performance on Friday. | Photo by Dan McQuade

(Editor’s Note: This is an opinion column from a Citified insider.)

The Mummers Parade was a national disgrace. Again. Can’t we just ban them, or, at least consign them to a march on Oregon Avenue?

Probably not. But that doesn’t mean we’re helpless in seeking a Mummers Parade that reflects and celebrates all Philadelphians.

Let’s start with the limits on what City Hall can do. A core First Amendment principle is that governments can’t discriminate based on the content of speech, no matter how offensive, especially when it’s in a public place on a matter of public concern. As the Supreme Court explained a few years ago in a decision defending the noxious Westboro Baptist Church’s ability to protest at funerals, “Such speech cannot be restricted simply because it is upsetting or arouses contempt. ‘If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.'”

So I agree with Mary Catherine Roper of the ACLU of Pennsylvania (with whom, full disclosure, I’ve partnered on some matters): Banning the Mummers or stripping their parade permits for offensive content is out. While the city certainly can place reasonable restrictions on the time, place and manner of the parade (route, hours, noise levels, etc.), none of that addresses offensive conduct when performed peacefully. Indeed, when friends have asked me about shifting the parade’s permit to Oregon or Island avenues, I’ve had to tell them that if the city were doing so in retaliation for the parade’s content, it would raise serious First Amendment concerns.

That is not to say that city government is powerless here. While the Mummers Parade cannot be banned, it also does not have to be funded by the city. Right now, city funds are used for the costs of shutting down streets, police and other normal expenses associated with hosting a parade, but that’s it: Mayor Michael Nutter withdrew the city’s funding of prize money in 2008. For the same reasons that the city can’t ban the parade based on offensive content, it also can’t punish the Mummers by requiring it to absorb its own crowd-control costs without imposing the same burdens on other city parades.

To the extent that Mayor Jim Kenney decides to appropriate additional funds for the parade, however, he is within his discretionary power to make his support conditional upon receiving a commitment that the parade will be inclusive. Moreover, the police department could, if deemed warranted for public safety and decency, enforce our open container and public intoxication laws more vigorously on January 1st than it typically does. And the mayor, his administration and members of Council can of course continue to exercise vigorous moral leadership in encouraging the Mummers forward.

(Side note: While I’m amused by the vision of having face-painted Mummers hauled in to testify before a Council hearing, Council does not directly fund the parade, so I’m not sure this would be the best or most appropriate use of its oversight powers.)

There’s one more source of leadership and pressure here that should not be overlooked: SugarHouse Casino, which has been the event’s principal sponsor for five years. It cannot keep no-commenting forever; in fact, it’s incumbent upon its executives to speak about the kind of parade they want to support — if they plan on continued support for the Mummers at all. If you’re as dissatisfied by their silence as I am, let them know what sort of civic citizenship you expect from them. SugarHouse and other parade sponsors have no limitation on their ability to condition future support on improved conduct and a more inclusive parade overall.

Promises have been made in recent days that would bring the parade closer to the one Philadelphia needs, one at which every Philadelphian will feel welcome, a parade where we can all celebrate. But you don’t have to just hope for the Mummers themselves to remember this week’s excoriation and see it through — no Mummer is an island, entire of itself, in the end.

Adam Bonin is an attorney who has represented candidates seeking political office, including 2015 candidates for the Pennsylvania Supreme Court, the Court of Common Pleas, Mayor, and City Council. These views are his own.

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