Over the past few years, Gathright and his venomous message have been kicked out of Pioneer Square and the Waterfront Park six times. But a few months ago, District Court Judge Ancer Haggerty determined that the city's permitting process is unconstitutional. Now the city is appealing that decision.
"On appeal," explained City Attorney Harry Auerbach, "is whether people who obtain permits may control the message at those events." He adds, "the Supreme Court says that they do." Gathright was kicked out of the public parks when the city gave specific groups a permit to use the park, and they complained about his presence--one event was a 9/11 remembrance; another, a greeting for the Dalai Lama.
In dispute is whether a group that has a permit to use a public park may choose who stays and who goes. If the NAACP held a rally in Pioneer Square, for example, could they kick out protesters from the KKK, or vice versa?
The prevailing legal protocol is not so clearly defined. In 1995, the Supreme Court determined that organizers for Boston's annual St. Patrick's Day parade could exclude gays. However, in issuing his decision for Gathright, Judge Haggerty pointed out that this case is different because no one would confuse Gathright's bigoted viewpoints as pertaining to the message of the events he was kicked out of.
"His message is generally unpopular at any event," admits Gathright's attorney, Kelly Ford. "We don't take the position that the city should not be allowed to kick out someone who is disruptive, but they are making [city parks] their own private living rooms," he adds, pointing out that in one instance Gathright was booted before he even opened his mouth.
"These are our parks," he adds.
The case is on a fast track and could be heard as early as this August. It could easily make it to the Supreme Court.