On The Front Lines
Citing Infringements on Rights of Street Preachers, Rutherford Institute Asks Federal Court to Call a Halt to Enforcement of Noise Ordinance
WINCHESTER, Va.—Citing infringements on the rights of street preachers who were prevented from preaching about their religious beliefs at a community street festival, The Rutherford Institute has asked the Federal District Court for the Western District of Virginia to call a halt to the enforcement of a Winchester noise ordinance that prohibits "unnecessary noise," as well as sounds that "annoy" or "disturb" others. The motion to enjoin Winchester officials from enforcing the ordinance comes on the heels of a First Amendment lawsuit filed by Rutherford Institute attorneys on behalf of street preacher Michael Marcavage and his Philadelphia-based organization, Repent America. The lawsuit, which challenges Winchester's ordinance both on its face and as applied to Marcavage during the Festival, charges that the ordinance violates the First Amendment's guarantee of free speech and is unconstitutionally vague and overbroad.
"This Winchester ordinance makes 'unnecessary noise' unlawful," stated John W. Whitehead, president of The Rutherford Institute. "What this means is that law enforcement officers can pick and choose what kind of verbal expression to allow and what to prohibit. If this kind of law is valid, then the First Amendment simply has no meaning."
Street preacher Michael Marcavage attended the 2010 Apple Blossom Festival in Winchester, Va., along with other members of Repent America, a Christian organization whose members regularly engage in free speech activities on public sidewalks and streets by expressing their sincerely held religious beliefs. The complaint alleges that as Marcavage preached to passersby on the public sidewalk of downtown Winchester using a handheld microphone, a police officer approached him and ordered him to turn off the microphone.
According to the complaint, the officer stated that a single bystander had complained that he felt "uncomfortable" with Marcavage's preaching. This complaint, according to the officer, rendered Marcavage's expression a violation of the City's noise ordinance, which prohibits sounds that "annoy" or "disturb" others. Marcavage immediately phoned the Winchester police chief, who had informed him prior to the Festival that street preaching with a handheld microphone would not violate any local laws. However, the police chief upheld the officer's order that Marcavage must cease and desist using the microphone. After about 45 minutes elapsed, Marcavage chose to continue his use of the microphone, but he did so under threat of citation in the event that another person were to complain.
In filing suit in federal court, Rutherford Institute attorneys have asked the court to strike down the City's ordinance as a violation of the First and Fourteenth Amendments to the U.S. Constitution. Institute attorneys also point out that the Virginia Supreme Court struck down a Virginia Beach noise ordinance in 2009 that was similar to the Winchester law in Tanner v. City of Virginia Beach. In March 2011, the federal court heard oral arguments on motions by both parties to dismiss the case, but the judge has yet to rule on those motions.
In April 2011, a Winchester police officer admitted under oath that he was ordered to go undercover for the purpose of monitoring street preachers. According to the officer's statement, he used a recording device to film the preachers as they expressed their sincerely-held religious beliefs during the 2010 Apple Blossom Festival. Winchester city officials have repeatedly refused to resolve the matter out of court.
