On The Front Lines

Rutherford Institute Cautions City of Williamsburg Against Removing Protections for Political & Religious Speech in Historic Areas

WILLIAMSBURG, Va. — John W. Whitehead, president of The Rutherford Institute, is calling on the City of Williamsburg, Va., to tread carefully in its efforts to appease local business owners by discouraging street preachers from engaging in expressive activities on Duke of Gloucester Street within the Colonial Williamsburg Historic Area and the Merchants Square Area. City officials rejected an initial proposal to establish free speech zones within the City’s historic areas after The Rutherford Institute warned that it was so overbroad as to severely restrict expressive activities within historic areas, and could even be construed as criminalizing casual interactions taking place outside those areas. However, as Whitehead points out, the City’s revised proposal, while much improved by doing away with free speech zones and establishing  maximum decibel levels for particular times of day, is still constitutionally problematic on two fronts because it removes exemptions for religious and political speech and grants unfettered discretion to the City Manager to legislate sound levels for public assemblies and gatherings.

The Rutherford Institute’s letter to the City of Williamsburg is available here.

“The City of Williamsburg remains one of our lone links to a time when communities had town squares—public areas where people gathered to exchange information, ideas, and do business. These served a vital function in America’s history, allowing opinions and ideas—whether good or bad—to be aired and debated,” said John W. Whitehead, president of The Rutherford Institute. “While we hope the City Council will continue to set the standard for a vibrant community that not only protects the freedoms prized so highly by our Founders but celebrates them, no matter what course the Council chooses to follow, The Rutherford Institute is ready to ensure that the Constitution’s assurances of free speech, assembly, religious expression and equal protection under the law are not jeopardized.”

In March 2012, the Williamsburg City Council considered amendments to § 9-39 of the Williamsburg Code to severely restrict expressive activities within the Colonial Williamsburg Historic Area and the adjacent Merchants Square Area, except in two “presentation areas.” While the ordinance apparently arose out of a concern about speakers blocking pedestrian and vehicular traffic or creating noise in excess of levels established in the City Code, it seemed to be aimed at curtailing the activities of street preachers and any undesired reactions on the part of listeners, which The Rutherford Institute warned was patently unconstitutional content and viewpoint discrimination. As Whitehead explained in a letter to the City Council, sidewalks and other public areas have immemorially been considered open to the public for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Unfortunately, by prohibiting all First Amendment-protected expressive activity outside the two “free speech zones,” the amendments would have criminalized a broad range of innocuous activity. In response to the Institute’s concerns, Williamsburg officials revised the proposed ordinance to do away with the free speech zones, while establishing maximum decibel levels for particular times of day. However, as Whitehead points out in his letter to city officials, while the revised proposal is obviously less restrictive of free speech rights and provides objective criteria that are devoid of subject matter regulation, its lack of exemptions for religious and political speech, as well as its granting of unfettered discretion to the City Manager to legislate sound levels for public assemblies and gatherings could pose substantial legal problems for the City if they remain unaddressed.