ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Before: ADAMS and HIGGINBOTHAM, Circuit Judges, and TEITELBAUM, District Judge*fn*
This case concerns the First Amendment rights of string bands to perform in Philadelphia's Mummers Parade and the proper standards to be used in evaluating the constitutionality of the Parade Rules. In 1981, the City adopted rules to limit the number of bands that could participate in the parade. The plaintiffs are two string bands and their founders, who would be excluded from marching by these Rules, unless a current parade participant does not march. They filed this action in the district court alleging that the regulations unconstitutionally inhibited their First Amendment freedoms of expression and association. The district court struck down the Rules as an invalid infringement of the bands' freedom of expression and therefore did not reach the freedom of association claim. Because we find that the district court did not apply the proper test in judging the Rules, the case will be remanded both for reconsideration of the free expression claim as well as a determination of the freedom of association claim.
One of Philadelphia's well-established traditions is its annual Mummers Parade on New Year's Day. The parade includes thousands of participants, and draws many times that number of spectators. In recent years, the parade has ended after dark, thus creating serious safety and traffic hazards in the city. The parade is arranged and administered jointly by the Philadelphia Shooters and Mummers Association (a private organization) and the Recreation Commissioner of the City of Philadelphia. The Commissioner determines which groups may participate in the parade.
An important division of the parade consists of the string bands, units containing between 48 and 64 paraders performing music primarily on string, reed and percussion instruments, wearing elaborate original costumes and presenting a special theme. These units are judged on their performances, and cash prizes, paid by the city, are awarded to all bands. In 1980, the prizes ranged from $7,000 for first place to $2000 for last place. Undisputed Fact 9, Joint Appendix at 64a.
The Northeast Philadelphia String Band ("Northeast"), one of the plaintiffs in this case, was formed in February 1980, and applied to participate in the 1981 Mummers Parade. At that time, there was an unwritten policy that no new bands would be admitted to the parade, except to fill vacancies. When the Recreation Commissioner failed to admit Northeast to the parade, the band filed suit in the federal district court. Northeast alleged that the admission policy violated its First Amendment rights of free expression and association by preventing it from performing in the parade and by penalizing musicians who chose to join the new band rather than remaining in an older, established band. In 1981, the South Jersey String Band was formed and, when denied admission to the 1982 Mummers Parade, joined in the litigation commenced by Northeast.*fn1
Under an order of the district court, the city in July 1981 officially published its rules limiting parade admittance to those string bands that had marched in the 1980 parade, with vacancies to be filled by lottery. The city justified these restrictions as necessary to end the parade before dark, thus protecting public safety. Following a bench trial, the district court held that the plaintiffs' activity was a form of protected expression and the city could delimit that freedom only by the least restrictive means of achieving its goal of public safety. Since the court found that there were other means of shortening the parade that would not prevent the plaintiffs from performing, it struck down the Rules and permanently enjoined the city from denying the bands admittance to the parade. It is from this judgment that the city has appealed.
This controversy raises several important First Amendment issues. First, we must decide whether the plaintiffs' activity, a band performance, is a form of expression protected by the amendment. Second, we must consider the proper test for determining the constitutionality of content-neutral regulations that infringe on protected expression. Third, we must address the plaintiffs' freedom of association claim, and the validity of content-neutral regulations in this context. Finally, it is necessary for us to discuss the effect of impermissible motive on the part of the city, and the standard for evaluating regulations that may be tainted in this manner.
Each band that marches in the Mummers Parade prepares a thematic arrangement. It then selects its music, costumes and drill work to express its own artistic conception of that theme. The district court concluded, and we agree, that ...