Michael Marcavage

A court brief filed in a dispute over a city crackdown on a street preacher’s activities contends the policy should be abandoned immediately because it’s not constitutional to base an individual’s First Amendment speech rights on someone else’s “comfort.”

“The City of Winchester’s noise ordinance goes far beyond the scope of permissible regulation for a traditional public forum,” said a brief in support of a request for summary judgment in the case between Winchester, Va., and Michael Marcavage of the Repent America Christian ministry.

Marcavage regularly preaches the message of the Bible at street festivals and other occasions across the country.

Find out what’s going on here and now, in “Shut Up, America!: The End of Free Speech”

Last year, he was at the Apple Blossom Festival in Winchester. After checking with the police department ahead of time, he used a public address system to carry his message to listeners.

However, he was ordered to shut it down, and in the resulting legal challenge, attorneys for the Rutherford Institute and others now have asked the judge to simply decide the case in Marcavage’s favor.

“The ordinance constitutes an outright prohibition of certain verbal expression without any reference to objective characteristics of that expression, such as volume, and it does so through the use of vague terms and unascertainable standards,” said the brief, compiled by Rita M. Dunaway.

Specifically, it pointed out the conversation in which Lt. John Danielson of the Winchester Police Department ordered Marcavage to stop using his equipment, which he earlier had been told was permitted.

Danielson told Marcavage: “That gentleman [pointing at a third party] just said he’s not comfortable with what’s going on. That’s a violation of our city code.”

He continued, “You can talk all you want, you just can’t use this system.”

“Upon being ordered by law enforcement to cease using amplification to express their sincerely held religious beliefs on the public streets and sidewalks of Winchester, plaintiffs were faced with the choice of either abandoning the effective communication of their message to passersby or being cited,” the brief explains. “It is undisputed that if plaintiffs had violated the direct order of defendant Danielson to turn off the amplification device, they could have been arrested.”

John W. Whitehead, president of the Rutherford Institute, noted the Winchester ordinance makes “unnecessary noise” unlawful.

“What this means is that law enforcement officers can pick and choose what kind of verbal expression to allow and what to prohibit,” he said. “If this kind of law is valid, then the First Amendment simply has no meaning.”

The ordinance makes it illegal to make “excessive, unnecessary, or unusually loud noise, or any noise which unreasonably annoys, disturbs, injures or endangers the comfort, health, safety, welfare, or environment of others.”

In the federal court suit, Rutherford Institute attorneys asked the court to strike down the city’s ordinance as a violation of the First and Fourteenth Amendments of 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 March this year, the federal court heard oral arguments on motions by both parties to dismiss the case, but the judge has yet to rule on the motions.

Just weeks ago, as part of the case, a Winchester police officer also admitted under oath that he was ordered to go undercover to monitor 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.

The request for a summary judgment explains that’s the proper procedure where the record shows “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

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