Case 2:21-cv-01609-CDJ Document 21 Filed 01/12/22 Page 1 of 20
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`CONFERENCE OF PRESIDENTS OF
`MAJOR ITALIAN AMERICAN
`ORGANIZATIONS, INC., et al.,
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`Plaintiffs,
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`v.
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`CITY OF PHILADELPHIA and
`MAYOR JAMES F KENNEY,
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`Defendants.
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`Jones, II J.
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
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`MEMORANDUM
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` CIVIL ACTION
` NO. 21-1609
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` January 12, 2022
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`I.
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`Introduction
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`At its core, this case is about the City of Philadelphia and its Mayor, James Kenney,
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`issuing an Executive Order (“Executive Order 2-21”) that allegedly discriminates against Italian
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`Americans by designating that the City holiday known as “Columbus Day” shall be known as
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`“Indigenous Peoples’ Day” in the City of Philadelphia. Philadelphia City Councilmember, Mark
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`Squilla, Jodi Della Barba, the 1492 Society, Grand Lodge of Pennsylvania, Sons and Daughters
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`of Italy,1 and Conference of Presidents of Major Italian American Organizations, Inc.
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`(collectively “Plaintiffs”) bring the present action against the City of Philadelphia and Mayor
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`James F. Kenney (collectively “Defendants”), alleging violations of: the Equal Protection Clause
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`under 42 U.S.C. § 1983; the Philadelphia Home Rule Charter; the separation of powers doctrine;
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`the Pennsylvania Sunshine Act; and the Home Rule Act. Plaintiffs also seek declaratory
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`judgments to find that Italian Americans are a protected class, and that Executive Order 2-21
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`violates the Equal Protection Clause.
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`1 This party was brought in as an Interpleader, but, for purposes of this opinion, the Court will refer to the Grand
`Lodge and all other Plaintiffs collectively.
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`1
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`Case 2:21-cv-01609-CDJ Document 21 Filed 01/12/22 Page 2 of 20
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`Defendants have moved to dismiss the above-captioned case in its entirety, arguing that:
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`Plaintiffs lack standing, the name change of the holiday constitutes government speech, and,
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`Plaintiffs fail to state a viable equal protection claim. For the reasons stated herein, Defendants’
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`Motions for Dismissal (ECF Nos. 17 and 18) are granted.
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`II.
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`Statement of Facts
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`A. Columbus Day Nationally
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`Columbus Day has been recognized as a national government holiday since at least 1934.
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`Compl., ECF No. 1, ¶ 34. Italian immigrants and Italian Americans have historically embraced,
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`and continue to celebrate, Christopher Columbus as a symbol of the voyage their families
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`endeavored when immigrating from Italy to the United States. Compl. ¶ 26. Plaintiffs state that
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`Columbus Day was recognized, at least in part, due to the discrimination Italian Americans
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`faced. Compl. ¶ 30.
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`B. Columbus Day in Philadelphia
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`Plaintiffs claim that both Christopher Columbus and Italian Americans are facing
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`persecution throughout the country. Compl. ¶ 36. Specifically, in Philadelphia, Italian
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`Americans became concerned when the city began discussing whether to cancel Columbus Day.
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`Compl. ¶ 36. In early 2018, Plaintiff and City Councilmember, Mark Squilla, enlisted Robert F.
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`Petrone, Esq., a renowned Christopher Columbus expert, to research Columbus’s true historical
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`record. Compl. ¶¶ 37-38.
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`After conducting his investigation, Petrone provided Philadelphia City Council with two
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`(2) reports detailing his findings, which found no evidence that Columbus mistreated Indigenous
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`People. Compl. ¶¶ 41-43; see Petrone’s Reports attached to Compl. as Exhibit F. Rather, his
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`reports indicate that Columbus repeatedly protected tribal people. Compl. ¶ 43. Despite
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`Philadelphia City Council having been provided with Petrone’s reports, Mayor Kenny issued
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`Executive Order 2-212 on January 27, 2021, stating:
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`[T]he story of Christopher Columbus is deeply complicated…Columbus enslaved
`indigenous people, and punished individuals who failed to meet his expected service
`through violence and, in some cases, murder…[O]ver the last 40 years[,] many states and
`cities have acknowledged this history by recognizing the holiday known as Columbus
`Day instead as Indigenous Peoples’ Day…The City holiday celebrated on the second
`Monday in October, formerly known as Columbus Day, shall now be designated as
`Indigenous Peoples’ Day.
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`Compl. ¶¶ 44-45; see Executive Order No. 2-21, attached to Compl. as Exhibit A.
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`Following the issuance of Executive Order 2-21, Mayor Kenny noted:
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`While changes to City holidays may seem largely symbolic, we recognize that symbols
`carry power. We hope that for our employees and residents of color, this change is
`viewed as an acknowledgment of the centuries of institutional racism and marginalization
`that have been forced upon Black Americans, Indigenous people, and other communities
`of color. At the same time, we are clear-eyed about the fact that there is still an urgent
`need for further substantive systemic change in all areas of local government.
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`Compl. ¶ 46.
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`C. Other Discriminatory Acts by Mayor Kenney
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`In addition to changing the name of Columbus Day, Plaintiffs allege that Mayor Kenney
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`has repeatedly taken steps that form a pattern of racial discrimination against Italian Americans.
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`Compl. ¶ 66. For example, in a 2016 statement about immigration and his desire for
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`Philadelphia to remain a sanctuary city, Mayor Kenney stated, “This is undocumented brown and
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`black people[,] and that’s what drives the underlying source of anger…If this were [C]ousin
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`Emilio or Cousin Guido, we wouldn’t have this problem because they’re white.” Compl. ¶ 82.
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`In addition to his comments, Plaintiffs suggest that Mayor Kenney participated in a chain
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`of discriminatory conduct, beginning with the removal of the Frank L. Rizzo statue from the
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`2 Plaintiffs state that Mayor Kenney issued such Executive Order unilaterally. Compl. ¶ 44.
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`steps of the Municipal Services Building. Compl. ¶ 67. To date, the City has not returned the
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`statue to the Frank L. Rizzo Monument Committee. Compl. ¶ 68.3
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`After removing the Rizzo statue, Mayor Kenney prepared to remove the Christopher
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`Columbus statue from Marconi Plaza. Compl. ¶ 69. Despite this plan, Plaintiffs’ counsel was
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`notified by a City Hall employee, and an immediate injunction halted its removal. Compl. ¶ 69. 4
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`When Italian Americans from South Philadelphia gathered around the Columbus statue in
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`Marconi Plaza, Mayor Kenney labeled them as “vigilantes” and ordered them to “stand down.”
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`Compl. ¶ 72. On the belief that such “vigilantes” were roaming the city, on June 16, 2020,
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`Mayor Kenney ordered the reassignment of Police Captain Lou Campione from his command in
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`South Philadelphia. Compl. ¶ 73. However, when crowds gathered to protest in support of the
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`Black Lives Matter movement, he waived code and curfew violations. Compl. ¶¶ 70-71.
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`In a more recent discriminatory action, Plaintiffs claim that Mayor Kenney purposefully
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`delayed COVID-19 vaccine distribution to Italian American communities. Compl. ¶ 75. When
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`Philadelphia released the first twenty (20) Philadelphia zip codes eligible to receive the COVID-
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`19 vaccines, he skipped over those with the largest concentration of Italian Americans. Compl.
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`¶¶ 76-77.
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`III.
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`Procedural History
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`On April 6, 2021, Plaintiffs commenced the present action in the United States District
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`Court for the Eastern District of Pennsylvania. See Compl. ¶ 1. On April 12, 2021, the Grand
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`Lodge of Pennsylvania, Sons and Daughters of Italy filed a Motion to Intervene (ECF No. 10),
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`which this Court granted on April 27, 2021 (ECF No. 14). On May 12, 2021, Defendants filed
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`3 The removal of the Frank L. Rizzo statue is currently part of a separate lawsuit before this Court (21-CV-1609).
`For purposes of the present opinion, the Court will not further consider the merits of such claim.
`4 Litigation over the removal of the Christopher Columbus statue is in state court. Therefore, the Court will not
`consider the merits of this issue further.
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`the present Motions to Dismiss (hereinafter “Motions”) for both lack of jurisdiction and failure to
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`state a claim. ECF Nos. 17 & 18. Defendants argue that, not only are Plaintiffs’ allegations
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`frivolous, but they lack standing to bring the present Complaint. Plaintiffs filed Responses in
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`Opposition (hereinafter “Responses”) on May 26, 2021, arguing not only that the Government
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`cannot treat ethnic groups differently, but also that all Plaintiffs have standing either as Italian
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`Americans themselves or as advocates on behalf of Italian Americans. ECF Nos. 19 & 20. With
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`these filings, Defendants’ Motions are ripe for the Court’s review.
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`IV.
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`Standards of Review
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`A. Subject Matter Jurisdiction Under Fed. R. Civ. P. 12(b)(1)
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`A challenge to subject matter jurisdiction under Rule 12(b)(1) may take two (2) forms: a
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`facial or factual challenge. In re Schering Plough Corp. Intron/Temodar Consumer Class
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`Action, 678 F.3d 235, 243 (3d Cir. 2012). If a facial challenge concerns an alleged pleading
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`deficiency, the trial court is restricted to a review of the allegations of the complaint and any
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`documents referenced therein. CNA v. United States, 535 F.3d 132, 139 (3d Cir. 2008); Gould
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`Elec. Inc. v. United States, 220 F.3d 169, 177 (3d Cir. 2000). With a facial challenge, “the trial
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`court must consider the allegations of the complaint as true.” Mortensen v. First Fed. Sav. &
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`Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977).
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`A factual challenge “concerns the actual failure of a plaintiff’s claims to comport
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`factually with the jurisdictional prerequisites.” CNA, 535 F.3d at 139 (internal citation and
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`quotation marks omitted). If the challenge before the trial court is a factual challenge, the court
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`does not accord any presumption of truth to the allegations in the complaint, and the plaintiff
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`bears the burden of proving subject-matter jurisdiction. Id. With a factual challenge, the court
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`may weigh evidence outside the pleadings and make factual findings related to the issue of
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`jurisdiction. Id.; U.S. ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007).
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`“[T]he existence of disputed material facts will not preclude the trial court from evaluating for
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`itself the merits of the jurisdictional claims.” Mortensen, 549 F.2d at 891. A court must grant a
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`motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) “if it lacks subject-matter jurisdiction to
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`hear a claim.” In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d at
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`243.
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`B. Failure to State a Claim Under Fed. R. Civ. P. 12(b)(6)
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`Rule 12(b)(6) provides for dismissal of a complaint, in whole or in part, for failure to
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`state a claim upon which legal relief can be granted. In deciding a motion to dismiss, “‘[t]he
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`issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer
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`evidence to support the claims.’” Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d
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`315, 318 (3d Cir. 2008) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). While these
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`claims do not require detailed facts, “a complaint must do more than allege the plaintiff’s
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`entitlement to relief. Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). A
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`complaint must “show” the plaintiff is entitled to relief. Id. (quoting Phillips v. Cty. of
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`Allegheny, 515 F.3d 224, 234-235 (3d Cir. 2008)). “While legal conclusions can provide the
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`framework of a complaint, they must be supported by factual allegations.” Ashcroft v. Iqbal, 556
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`U.S. 662, 679 (2009).
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`Courts reviewing a motion to dismiss pursuant to Rule 12(b)(6) must “accept all factual
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`allegations as true, construe the complaint in the light most favorable to the plaintiff, and
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`determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled
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`to relief.” See Phillips, 515 F.3d at 233 (quoting Pinker v. Roche Holdings, Ltd., 292 F.3d 361,
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`374 n.7 (3d Cir. 2008)); see also Atlantic Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007). In
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`the Third Circuit, the Court’s review “is normally broken into three parts: (1) identifying the
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`elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3)
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`looking at the well-pleaded components of the complaint and evaluating whether all of the
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`elements identified in part one of the inquiry are sufficiently alleged.” Malleus v. George, 641
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`F.3d 560, 563 (3d Cir. 2011).
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`Dismissal is appropriate when, even assuming all of plaintiff’s claims as true, plaintiff
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`has not pleaded “enough facts to state a claim to relief that is plausible on its face.” Twombly,
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`550 U.S. at 570. If a plaintiff does not “nudge [his/her] claims across the line from conceivable
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`to plausible, [the] complaint must be dismissed.” Id.
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`V.
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`Discussion
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`A. Standing
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`Derived from Article III, standing “is the threshold inquiry in every case, one for which
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`the ‘party invoking federal jurisdiction bears the burden of [proof].’” Hassan v. City of N.Y., 804
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`F.3d 277 (3d Cir. 2015) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)). Article
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`III standing limits the category of litigants empowered to maintain a lawsuit in federal court to
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`seek redress for a legal wrong. Philadelphia Fed’n of Tchrs. v. Ridge, 150 F.3d 319, 322-323
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`(3d Cir. 1998); Pro. Dog Breeders Advisory Council, Inc. v. Wolff, 752 F. Supp. 2d 575, 583
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`(E.D. Pa. 2010).
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`To establish standing, “a plaintiff invoking federal jurisdiction bears the burden of
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`establishing three elements...First, it must establish that it has suffered an ‘injury in fact,’
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`meaning a concrete and particularized invasion of a legally protected interest.” Hartig Drug Co.,
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`Inc. v. Senju Pharmaceutical Co. Ltd., 836 F.3d 261, 269 (3d Cir. 2016) (citing Lujan, 504 U.S.
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`at 560)). “Second, [a plaintiff] must establish a ‘causal connection between the injury and the
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`conduct complained of—the injury has to be fairly traceable to the challenged action of the
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`defendant, and not the result of the independent action of some third party not before the court.’”
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`Id. (citing Lujan, 504 U.S. at 506) (internal quotation marks omitted). Third, a plaintiff must
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`establish “a likelihood ‘that the injury will be redressed by a favorable decision.’” Id. (citing
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`Lujan, 504 U.S. at 561).
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`“The existence of Article III standing often turns on the injury-in-fact element.”
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`Hendrick v. Aramark Corp., 263 F. Supp. 3d 514, 519 (E.D. Pa. 2017) (citing Spokeo, Inc. v.
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`Robins, 578 U.S. 330, 338-339 (2016)). Injury-in-fact requires particularization— “it must
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`affect the plaintiff in a personal and individual way[,]” and it requires the injury to be concrete—
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`“‘real’ as opposed to ‘abstract[,]’ [though not necessarily] ‘tangible.’” Id.
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`1. Standing Based on Discrimination
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`Each Plaintiff alleges to have standing, at least in part, because they either are or are
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`affiliated with Italian Americans, and they state that Executive Order 2-21 discriminates against
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`them by replacing it with a holiday designated to a similarly situated group (Indigenous People).
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`Response, ECF No. 20, 10-11. Defendants state that any alleged discrimination is about
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`messaging from changing the holiday’s name, not treatment, and it only conveys a generalized
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`grievance, not a particularized and concrete harm. Mot., ECF No. 17, 10. Plaintiffs respond that
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`the act of changing the name of Columbus Day is an affirmative action that results in taking from
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`one group and giving to another at the former’s expense. Response, ECF No. 20, 25-26. Having
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`reviewed the filings, the Court agrees with Defendants.
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`“Unequal treatment is ‘a type of personal injury [that] ha[s] long [been] recognized as
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`judicially cognizable[.]’” Hassan, 804 F.3d at 289 (citing Heckler v. Mathews, 465 U.S. 728,
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`738 (2004)). “‘Discriminatory classification is itself a penalty,’ and thus qualifies as an actual
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`injury for standing purposes, where a citizen’s right to equal treatment is at stake.” Id. at 290
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`(citing Saenz v. Roe, 526 U.S. 489, 505 (1999)).
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`Just because a plaintiff disagrees with the Government’s actions, however, does not
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`equate to discriminatory treatment. In Allen v. Wright, parents of Black children who were
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`attending public schools in seven (7) school districts sued the Internal Revenue Service (“IRS”),
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`alleging that the IRS had not adopted sufficient standards to deny tax exempt status to racially
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`discriminatory private schools. 468 U.S. 737 (1984). As one claim for standing, the parents
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`alleged that they were directly harmed by the stigmatizing injury caused by racial discrimination.
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`Id. at 738. The Supreme Court found that such stigmatic injury is insufficient for standing
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`because, if so, “standing would extend nationwide to all members of the particular racial group
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`against which the Government was alleged to be discriminating...[.]” Id. at 756. “Recognition
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`of standing in such circumstances would transform the federal courts into ‘no more than a
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`vehicle for the vindication of the value interests of concerned bystanders.’” Id. at 756 (citing
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`U.S. v. SCRAP, 412 U.S. 669, 687 (1973)). See Valley Forge Christian Coll. v. Ams. United for
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`Separation of Church and State, Inc., 454 U.S. 464, 485 (1982) (“[P]sychological consequence
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`presumably produced by observation of conduct with which one disagrees...is not an injury
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`sufficient to confer standing under Art. III[.]”)
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`Similarly, here, Plaintiffs fail to identify any discriminatory impact they have personally
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`experienced from Executive Order 2-21. Like Allen, if standing is found in this case based on
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`alleged discriminatory treatment, then any person, apparently located in any state, would have
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`standing because they either have some percentage of Italian ancestry (no matter how small) or
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`consider themselves allies of Italian Americans. Though it is true that standing should not be
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`denied just because many plaintiffs may bring a claim, Plaintiffs fail to explain, and this Court
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`fails to see, how they have been personally impacted and harmed through the renaming
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`Columbus Day to Indigenous Peoples’ day.5
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`Plaintiffs continually reference Hassan to support that discriminatory classification is,
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`itself, an injury sufficient for Article III standing. 804 F.3d at 291. In Hassan, a group of
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`Muslim plaintiffs sued the city of New York, alleging that in the wake of the 9/11 terrorist
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`attacks, the New York City Police Department began singling out Muslims for extra
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`surveillance. Id. at 285-286. The court found that these plaintiffs possessed standing, at least in
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`part, because they claimed, “to be the very targets of the allegedly unconstitutional surveillance,
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`[and that] they are unquestionably ‘affect[ed]...in a personal and individual way.’” Id. at 291
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`(citing Lujan, 504 U.S. at 560 n. 1).
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`Unlike the plaintiffs in Hassan, Plaintiffs, here, fail to state any discriminatory treatment
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`by changing Columbus Day to Indigenous People’s day. While the plaintiffs in Hassan
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`possessed a right to be free from unconstitutional searches, and they were being targeted by the
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`Government entirely based on their ethnicity, such action is not present here. There is no
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`constitutional right to have the second Monday in October go by a certain name or to have a
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`holiday celebrate a particular ethnicity. Additionally, while the Government in Hassan targeted
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`the plaintiffs entirely because of their ethnicity, Plaintiffs, here, fail to show how the name
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`change is related to Christopher Columbus’s heritage rather than his individual actions.
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`Moreover, they have failed to show even one (1) instance of how their lives have changed
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`because of Executive Order 2-21. Thus, the guidance Hassan provides is minimal.
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`Similarly, Plaintiffs’ reliance on Evancho v. Pine-Richland Sch Dist. is equally
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`unpersuasive because the plaintiffs in Evancho were able to show that they were clearly being
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`5 Plaintiffs can seek redress through the legislative process if affronted by the decision. Federal Courts were never
`intended to be a work-around for such a process.
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`singled out for their gender-identity. 237 F. Supp. 3d 267 (W.D. Pa. 2017). In that case, three
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`(3), transgender high school students alleged that a new school board resolution, which required
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`transgender students to either use a single-user bathroom or the bathrooms labeled for those that
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`match the sex on their birth certificates, was a violation of the Equal Protection Clause. Id. at
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`273-274. The court found that “[t]he Plaintiffs are being distinguished by governmental action
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`from those whose gender identities are congruent with their assigned sex. The Plaintiffs are the
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`only students who are not allowed to use the common restrooms consistent with their gender
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`identities.” Id. at 285. Unlike the plaintiffs in Evancho, Plaintiffs’ Complaint is silent in
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`explaining how their lives have been personally impacted or different by the changing of the
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`holiday’s name. Without such, Evancho’s ruling is unavailing.
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`Plaintiffs’ reference to Sandberg v. KPMG Peat Marwick, L.L.P. also provides little
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`guidance to the Court because that case, though mentioning a claim of discrimination, dealt
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`entirely with what appropriate statute of limitation should apply. 111 F.3d 331 (2d Cir. 1997).
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`Whether the plaintiff possessed standing to bring suit was never addressed, so the Court will not
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`concern itself any further in evaluating the case’s applicability to the present action.
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`Much like Sandberg, Mardell v. Harleysville Life Ins. Co. also does not address the issue
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`of standing in the discrimination context. The Mardell court references discrimination as an
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`injury only to consider what period for backpay from employment discrimination was
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`appropriate. 65 F.3d 1072, 1074 (3d Cir. 1995). This Court agrees that, in some instances,
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`discrimination is, itself, a real injury, but Plaintiffs fail to explain how Mardell is applicable to
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`the present case where they fail to state any discriminatory impact to warrant standing. Because
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`Mardell does not contest the plaintiff’s standing, its applicability to the present action is limited.
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`Though Plaintiffs repeatedly reiterate that they have experienced alleged discrimination
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`from Executive Order 2-21, their filings are completely devoid of any particularized
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`discriminatory impact or injury to a legally protected interest. Accordingly, any allegation that
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`all Plaintiffs possess standing because discrimination, itself, is a cognizable injury is entirely
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`insufficient.
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`2. Standing Based on Columbus Day Parade and Celebrations
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`In addition to the generalized grievances of discrimination, Plaintiffs, specifically
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`Plaintiff Della Barbra, the 1492 Society’s Columbus Day parade organizer, the 1492 Society, and
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`the Grand Lodge appear to imply further injury because of Executive Order 2-21’s alleged
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`impact on their Columbus Day parade/celebrations. Response 30. Defendants respond that
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`Plaintiffs do not, and cannot, claim that Executive Order 2-21 will prevent them from organizing
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`a parade or further celebrations honoring Christopher Columbus and/or Italian American
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`Heritage. Response 12. Because Plaintiffs’ Complaint is void of any alleged inability to still
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`celebrate Christopher Columbus or Italian American ancestry with the holiday’s new name,6
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`such an implication is also insufficient to warrant standing.
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`“Allegations of ‘possible future injury’ are not sufficient to satisfy Article III [standing].”
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`Reilly v. Ceridian Corp., 664 F.3d 38, 42 (3d Cir. 2011) (quoting Whitmore v. Arkansas, et al.,
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`495 U.S. 149, 158 (1990)). Rather, “[a] threatened injury must be certainly impending.”
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`Whitmore, 495 U.S. at 155 (internal citation and quotation marks omitted). Imminence “has
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`been stretched beyond the breaking point when…the plaintiff alleges only an injury at some
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`indefinite future time, and the acts necessary to make the injury happen are at least partly within
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`the plaintiff’s own control.” Lujan, 504 U.S. at 564 n.2. The threatened injury must “proceed
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`6 This is particularly true given that the Federal Holiday’s name has not changed.
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`with a high degree of immediacy, so as to reduce the possibility of deciding a case in which no
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`injury would have occurred at all.” Id.
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`Plaintiffs fail to suggest any impending harm from Executive Order 2-21 because they
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`can still celebrate Christopher Columbus under the holiday’s new name. Nothing in Executive
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`Order 2-21 prevents Italian Americans from organizing a parade to honor Columbus and/or
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`Italian American heritage, and Plaintiffs do not, and cannot, suggest that it does.7 See Doe ex rel.
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`Doe v. Lower Merion Sch. Dist., 665 F.3d 524, 542 (3d Cir. 2011) (“In the equal protection
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`context, an injury resulting from governmental racial discrimination accords a basis for standing
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`only to those persons who are personally denied equal treatment by the challenged
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`discriminatory conduct.”) (internal citations omitted). It is within Plaintiffs’ own control
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`whether and how they choose to celebrate the holiday formerly known as Columbus Day, so any
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`implication that such is controlled by Executive Order 2-21 is false and cannot afford standing.
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`3. Standing Based on Miscellaneous Discriminatory Acts
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`In addition to their primary complaints over Executive Order 2-21, Plaintiffs also list
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`numerous, miscellaneous grievances against Defendants. Because the removal of the Frank L.
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`Rizzo statue and attempted removal of the statue of Christopher Columbus are being handled as
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`separate lawsuits, this Court looks to whether Plaintiffs have standing for: the manner in which
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`the City distributed COVID relief vaccinations; the reassignment of one Police Captain from his
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`assignment in the First Police District; the Mayor’s statement that Italian Americans gathering at
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`7 In fact, despite the name change, a parade was still successfully organized in South Philadelphia to commemorate
`Christopher Columbus and Italian American heritage. See Jasmine Payoute, ‘It’s Insulting’: Attendees Of
`Columbus Day Parade Upset With Latest Ruling On Controversial Marconi Plaza Statue, CBS PHILLY (Oct. 11,
`2021, 12:02 AM), https://philadelphia.cbslocal.com/2021/10/11/philadelphia-columbus-day-parade-marconi-plaza-
`statue/. As “[c]ourts may…take judicial notice of news reports to evaluate ‘what was in the public realm’” when
`deciding a motion to dismiss, the Court’s consideration of this fact is appropriate. U.S. v. Kindred Healthcare, Inc.,
`469 F. Supp. 3d 431, 438 n.3 (E.D. Pa. 2020) (citing Benak ex rel. Alliance Premier Growth Fund v. Alliance
`Capital Mgmt. L.P., 435 F.3d 396, 401 n.15 (3d Cir. 2006)).
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`the Columbus statue were “vigilantes”; and Mayor Kenney’s statement in 2016 in which he
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`“stereotyped” Italian Americans.
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`Again, Plaintiffs do not explain, and this Court fails to see how any such allegations
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`amount to “an injury that is both concrete in nature and particularized to them.” In re U.S. Cath.
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`Conference, 885 F.2d 1020, 1023 (2d Cir. 1989). See Mehdi v. U.S. Postal Serv., 988 F. Supp.
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`721, 730 (S.D.N.Y. 1997) (“[W]hile the stigmatizing injury caused by discrimination ‘is one of
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`the most serious consequences of government actions and is sufficient in some circumstances to
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`support standing,…such injury accords a basis for standing only to those persons who are
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`personally denied equal treatment by the challenged discriminatory conduct.’”) (quoting Allen,
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`468 U.S. at 755 (internal citation and quotation marks omitted)). Even with these allegations,
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`Plaintiffs have still failed to state a single basis on which this Court may find standing to
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`consider their Equal Protection claim.
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`B. Arguendo Equal Protection Violations
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`1. Government Speech
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`Assuming arguendo that any of the abovementioned Plaintiffs had standing to bring the
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`present action, a conclusion that this Court does not find, Counts I-III of the Complaint must still
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`be dismissed because Defendants’ actions are protected by the government speech doctrine.
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`When the Government is speaking, it has the right to hold its own viewpoint. A government
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`entity “is entitled to say what it wishes,” Rosenberger v. Rector and Visitors of Univ. of Va., 515
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`U.S. 819, 833 (1995), and to select the views that it wants to express. See, e.g., Rust v. Sullivan,
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`500 U.S. 173, 194 (1991). “The government must take substantive positions and decide disputed
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`issues to govern.... So long as it bases its actions on legitimate goals, [the] government may
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`speak despite citizen disagreement with the content of its message, for [the] government is not
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`required to be content-neutral.” Keller v. State Bar of Cal., 496 U.S. 1, 10 (1990).
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`The parties have failed to cite, and this Court has failed to find, any cases determining
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`whether holiday names constitute government speech. Accordingly, the Court looks to two (2)
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`related cases for guidance. In Pleasant Grove City, Utah v. Summum, the Supreme Court
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`considered whether a religious group’s free speech rights were violated by the city’s denial of its
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`request to erect a monument in a public park where a Ten Commandments monument stood.
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`555 U.S. 460 (2009). The Supreme Court upheld the city’s decision, ruling that the display of
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`permanent monuments in public parks is a form of government speech. Id. at 464.
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`In making this conclusion, the Summum Court relied on three (3) main factors. First, the
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`Court looked to the history of governmental use of monuments, explaining that governments
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`“have long used monuments to speak to the public” and that when a “government entity arranges
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`for the construction of a monument, it does so because it wishes to convey some thought or
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`instill some feeling in those who see the structure.” Id. at 470. Second, it considered whether
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`the message conveyed by the monuments selected would be ascribed to the Government and
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`found that “there is little chance” that people in the park will fail to identify the Government as
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`the speaker. Id. at 471. Third, the Court analyzed whether the municipality “effectively
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`controlled” the messages sent by the monuments because it exercised “final approval authority
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`over their selection.” Id. at 473.
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`A few years after Summum, the Supreme Court revisited the government speech doctrine
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`in Walker v. Tex. Div., Sons of Confederate Veterans, Inc. when it considered whether the
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`rejection of a specialty license plate design featuring a Confederate flag by the Texas Department
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`of Motor Vehicles violated the First Amendment. 576 U.S. 200 (2015). Concluding that
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`specialty license plates convey government speech, the Supreme Court held that Texas was
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`entitled to refuse to issue the plates that featured the proffered design. Id. at 219-20. Applying
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`the Summum factors, the Court held that the license plates constitute government speech because:
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`(1) “they long have communicated messages from the States,” (2) they are “often closely
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`identified in the public mind” with the State, and (3) “Texas maintains direct control over the
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`messages conveyed on its specialty plates.” Id. a