Free speech restored at Liberty Bell display

Liberty Bell engraving states: "Proclaim liberty throughout the land unto all the inhabitants thereof."

A federal appeals court has restored to the public First Amendment speech protections at the historical Philadelphia site where the Liberty Bell – which carries the biblical admonition from Leviticus 25:10 to "Proclaim liberty throughout the land unto all the inhabitants thereof" – is on display.

The ruling from the 3rd U.S. Circuit Court of Appeals overturned the convictions for violating a demonstration "permit" and "interfering" with National Park Service operations at the popular tourist attraction against Michael Marcavage of Repent America for his street preaching in 2007 that advocated for the protection of the lives of the unborn.

The ruling by Judges D. Michael Fisher, Thomas M. Hardiman and Robert E. Cowen faulted the government for not following its own regulations, not proving its case and ignoring the basic demands of the First Amendment.

While some time and place speech restrictions are constitutional, they need to serve a "compelling interest," the ruling said, and the "government chose not to submit evidence."

"It is not our practice to make a litigant's case for it, and the government is no exception," the ruling said.

Further, "The government failed to carry its burden of proving that its content-based regulation of Marcavage's speech survives strict scrutiny," the ruling, released yesterday, said. "We hold that the government impermissibly infringed Marcavage's First Amendment right to free speech."

The goal of maintaining order at a historical site, the judges pointedly wrote, does not "license the government to deprive an individual of a constitutional right irrespective of the circumstances."

Liberty Bell in Philadelphia

"I'm rejoicing and praising the Lord for this victory; this is not only a victory for me, but for all Americans," Marcavage said. "The dangerous reality as evidenced by this case is that, even in the birthplace of American freedom in the shadows of the Liberty Bell and Independence Hall, the government is aggressively working to silence the truth.

"The only thing that I was guilty of that day was preaching the Gospel of Jesus Christ and against the mass murder of children in the womb," he continued. "I'm thankful to the judges who delivered justice and restored freedom with their unanimous ruling."

Officials with the U.S. attorney's office in Philadelphia, which prosecuted the case, told WND they were evaluating the ruling.

Marcavage was arrested by supervising U.S. Park Ranger Alan Saperstein in October 2007 after rejecting a "verbal permit" to move to an "unconstitutional free-speech zone" away from the sidewalk where he had been exhorting people to protect the lives of the unborn.

He was convicted by a U.S. magistrate of violating the so-called "verbal permit" and months later was ticketed for "interfering with an agency function."

The convictions by the magistrate were accompanied by a fine of $445, a year of federal probation and a ban on entering Independent National Historical Park or being on the public sidewalks around the park without informing park officials.

He also was ordered not to return to engage in "free-speech activities" without first getting permission from the park.

The convictions later were affirmed by U.S. District Judge Legrome Davis.

But the appeals court said the government hadn't even followed its own rules, which require that the "verbal permit" a ranger issued to Marcavage be in writing.

"The government rather curiously does not concede that Marcavage's … conviction must fail, asserting instead that Marcavage was 'not prejudiced by the absence of a written document,'" the opinion said.

"We know of no authority that relieves the government of its burden of proving every element of a crime if the defendant cannot show post-conviction that he was 'prejudiced' by the government's failure to do so. The plain language … speaks unequivocally: a permit must be in writing.

"If the government is looking for prejudice, it need look no further than its having sought and obtained Marcavage's conviction on a fatally flawed legal premise," the judges ruled.

The second conviction, for "interfering," must fail because of the First Amendment, they said.

"Marcavage's complaint, as we understand it, is that the government squelched his speech on a particular day and in a particular place because he was talking about abortion, and that the government had no warrant to do so under the circumstances," the opinion said.

Michael Marcavage

First, Marcavage was on a public sidewalk that was "indistinguishable" from nearby sidewalks that historically had been used for protests and demonstrations. It was the site of other free-speech actions at the same time Marcavage was there, the court said.

Further, the rangers admitted during trial testimony they were concerned with the content of Marcavage's speech.

Ranger Nan Byrne testified, "It was a pretty intense message and there were people with little kids and stuff, so yes, some of them were upset with the message."

"If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable," the judges found.

"Here, the rangers' testimony reflects that they: observed that Liberty Bell visitors and pedestrians were disturbed by and complained about Marcavage's preaching and the graphic images on the signs displayed by Marcavage's group; were concerned by visitors' reactions to that message and those signs; and thought it unfair that those individuals were being subjected against their will to listening to that message and viewing those signs. Significantly, they testified that their decision to remove Marcavage was a product of, among other things, those concerns."

Marcavage earlier told WND it was "absurd" that Americans have to fight for the right to speak freely on a public sidewalk near Independence Hall, where much of the work writing the U.S. Constitution was done, and adjacent to the exhibit of the Liberty Bell, one of the best-known symbols of freedom in the world.

Repent America is an evangelistic organization based in Philadelphia whose leaders "know that there is a literal hell and a lake of fire where the unsaved will burn for all eternity; therefore, we act upon this truth without reservation and GO OUT into the communities of America declaring the Word of God and proclaiming the Good News."

Officials said a separate civil action launched by Marcavage over his arrest now will resume; it had been on hold while his convictions were challenged.