On The Front Lines
Victory: City of Winchester Agrees to Amend Noise Ordinance, Settles Case of Street Preacher Prohibited from Making ‘Annoying, Disturbing’ Sounds
WINCHESTER, Va.— In response to a First Amendment lawsuit filed by attorneys for The Rutherford Institute, the City of Winchester has agreed to amend its noise ordinances, which prohibited "unnecessary" sounds that "annoy" or "disturb" others. Institute attorneys filed the federal lawsuit against the City of Winchester in November 2010, charging that the ordinance violated the First Amendment's guarantee of free speech and was unconstitutionally vague and overbroad. The case arose out of events that transpired during the 2010 Apple Blossom Festival in which a Christian street preacher was prevented from using a microphone to preach about his religious beliefs on a public sidewalk after a passerby allegedly complained that he felt "uncomfortable".
"We're pleased that the City of Winchester has finally agreed to recognize that the right to speak freely cannot to be conditioned upon how others feel about the message," stated John W. Whitehead, president of The Rutherford Institute. "As former Supreme Court Justice Hugo Black recognized, 'The very reason for the First Amendment is to make the people of this country free to think, speak, write and worship as they wish, not as the Government commands.'"
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. 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. The officer allegedly 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, upon receiving Marcavage's call on the day of the Festival, the police chief insisted that the officers would enforce the ordinance against the preachers if any citizens complained about the noise. It was later revealed that law enforcement officials were ordered to go undercover for the purpose of monitoring the street preachers. According to one police 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.
In filing suit in Federal District Court for the Western District of Virginia, Rutherford Institute attorneys 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 pointed 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 settling the case, the City of Winchester has agreed to revise the challenged provisions, to cease enforcement of the provisions pending revision, and to pay monetary damages and attorney's fees.
