City to allow speech that may even 'annoy'

Michael Marcavage

Officials in Winchester, Va., will alter their noise ordinance and adjust its enforcement following a First Amendment lawsuit against city procedures that censored speech that might annoy some people, according to a legal team fighting the battle.

The city agreed to revise the challenged provisions, halt enforcement until the changes are made and pay undisclosed monetary damages and attorney's fees, according to today's announcement from the Rutherford Institute.

"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," said 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.'"

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

The issue arose over a city crackdown on a street preacher's activities. The speaker contended the policy should be abandoned because it's not constitutional to base an individual's First
Amendment speech rights on someone else's "comfort." Police had shut down the preacher when a passerby allegedly complained he was "uncomfortable."

"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.

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, resulting in a legal challenge to the ordinance.

"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 Rutherford Institute 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.

"This complaint [from a passerby], 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," the institute reported.

"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," the group said.