On The Front Lines
Rutherford Institute Sues N.J. Borough on Behalf of Street Preacher Cited for Violating Ordinance that Prohibits Sounds that ‘Annoy’ or ‘Disturb’
MANASQUAN, N.J. — The Rutherford Institute has filed a First and Fourteenth Amendment lawsuit in federal court challenging a New Jersey Borough’s noise ordinance which prohibits sounds that “annoy” or “disturb” others. Institute attorneys filed the lawsuit on behalf of Christian street preacher Ken Fleck, who was issued a citation for violating a municipal noise ordinance while using a small amplification device on a public sidewalk in the Borough of Manasquan. The charges against Fleck were dismissed in court because the city could not prove he had created a disturbance.
The Rutherford Institute’s complaint in Fleck v. Borough of Manasquan is available here.
“The United States has historically stood for unfettered free speech, which is vital to a functioning democracy. Unfortunately, the tendency on the part of government and law enforcement officials to purge dissent has largely undermined the First Amendment’s safeguards for political free speech,” said John W. Whitehead, president of the Rutherford Institute. “Whether you’re talking about a noise ordinance or a so-called free speech zone, the message from government officials is the same—there is no longer any such thing as unfettered free speech in America today.”
On January 7, 2012, Ken Fleck was preaching on a public sidewalk in Manasquan, New Jersey, while using a small amplification device when a police officer approached him. The officer informed Fleck that he was allegedly violating the city’s noise ordinance, which prohibits any sound that is “loud, unnecessary or unusual... which either annoys, disturbs, or endangers” others. The officer then issued Fleck a summons to appear in court for violating the Borough of Manasquan’s noise ordinance and threatened him with arrest for disorderly conduct if he continued to preach. Fleck pleaded not guilty at the court hearing on January 18. At the subsequent trial on March 21, the court dismissed the charge because the Borough of Manasquan did not produce evidence that Fleck had disturbed others with his preaching. On May 4, attorneys for The Rutherford Institute filed suit in the U.S. District Court for New Jersey on Fleck’s behalf against the Borough of Manasquan, arguing that the noise ordinance used to charge Fleck is unconstitutional. Specifically, Institute attorneys argue that the ordinance unlawfully restricts, restrains and inhibits a substantial amount of protected First Amendment activity in areas that are open to the public.
According to the complaint, the ordinance also lacks objective standards as to what constitutes noise, including speech that “annoys” or “disturbs” others, leaving officials to make their own subjective determinations. Institute attorneys also charge that the ordinance empowers the Mayor and City Council to exempt certain speech activities as they deem appropriate, resulting in the creation of differing classes of speakers. Given that the ordinance makes it unclear which kinds of activities will be permitted and which will be prohibited, Institute attorneys insist that its vagueness and disparate treatment of individuals engaging in expressive activities constitute a violation of the Fourteenth Amendment’s Equal Protection Clause. The Institute is asking the district court to declare the noise ordinance unconstitutional.
