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Lost Liberties: “Unnecessary Noise”

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Citing Infringements on Rights of Street Preachers, Rutherford Institute Attorneys Present Oral Arguments in Noise Ordinance Case

WINCHESTER, Va.— Attorneys for The Rutherford Institute will present oral arguments on Wednesday, August 17, 2011, before the Federal District Court for the Western District of Virginia in favor of a motion for summary judgment in Marcavage v. City of Winchester on behalf of a group of street preachers who were prevented from using a microphone to speak about their religious beliefs at a community street festival.

The motion for summary judgment comes on the heels of a First Amendment lawsuit filed by Rutherford Institute attorneys on behalf of street preacher Michael Marcavage and his Philadelphia-based organization, Repent America. At issue in the case is a Winchester noise ordinance that prohibits “unnecessary noise,” as well as sounds that “annoy” or “disturb” others. Institute attorneys argue that Winchester’s ordinance violates the First Amendment’s guarantee of free speech and is unconstitutionally vague and overbroad, both on its face and as applied to Marcavage during the festival.

“This Winchester ordinance makes ‘unnecessary noise’ unlawful,” stated John W. Whitehead, president of The Rutherford Institute. “What this means is that law enforcement officers can pick and choose what kind of verbal expression to allow and what to prohibit. If this kind of law is valid, then the First Amendment simply has no meaning.”

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. The complaint alleges that 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.

According to the complaint, the officer 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, the police chief upheld the officer’s order.

In filing suit in federal court, 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 March 2011, the federal court heard oral arguments on motions by both parties to dismiss the case, but the judge has yet to rule on those motions.

In April 2011, a Winchester police officer admitted under oath that he was ordered to go undercover for the purpose of monitoring 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. Both parties have since filed motions for summary judgment, arguing that there are no material facts in dispute.

Read online at: http://www.rutherford.org/articles_db/press_release.asp?article_id=946

25 Comments

  1. Did you not read “The Drowning Woman,” Jim? You’re drowning, the world is drowning. You just don’t believe it.

    Someday you will. Someday you will.

    • Did you not read the comments for “The Drowning Woman”, Steve?

      We’re at a bench in a park. The world is at a bench in the park. You just don’t believe it.

      Someday you will, hopefully. Hopefully, someday you will.

      🙂

      FTFY. HTH. HAND.

  2. Is “expressing their sincerely held religious beliefs” a legal phrase? I found it strange that it was used twice in the post.

    Also, I don’t understand why the words “a single bystander” were bolded and italicized; is there a particular number of complainants required to be “okay”? Like, one is not enough, but three are?

    Also, I’m curious how these people (the street preachers) would feel if someone stood next to them with a vuvuzela all day. Would that be “annoying” and “disturbing”?

    Having said all that, I would be very interested to know what bothered the complainant. Just curious.

  3. Yes it’s a legal phrase.

    I bolded the single bystander cause I thought it ridiculous.

    If someone stood next to me with a vuvuzela I wouldn’t mind… as long as he stood there not blowing it.

    I’m not sure that the preachers were preaching all day to an individual anyway.

    • “If someone stood next to me with a vuvuzela I wouldn’t mind… as long as he stood there not blowing it.”

      That’s interesting Steve, so you would mind if he was blowing it. And if blowing it was in line with “expressing their sincerely held religious beliefs”?

  4. I love your site Steve. The sad truth here and what these atheists don’t understand or can’t, is while they may be getting there way in this instance by violating the rights of the street preachers, they are ultimately violating and restricting their own freedoms and rights. For example, those in favor of murder, which they call abortion voted for here in California for a child of any age to be able to have an abortion, not only without the parents consent, but without their knowledge. What happens when a child decides to challenge his / her parents authority to have cosmetic surgery or whatever else they may choose to do. This child will go to court and demand to due as they wish. With this silly law / case precedent, how will a judge deny this? If this underage child can have an abortion without their parents consent or knowledge, why not breast enhancements, tattoos or some other type of mutilation? Suppose they demand their “right” to have their boyfriend / girlfriend move in? And they say we Christians are incapable of critical thinking!!!!

    • The sad truth here and what these atheists don’t understand or can’t, is while they may be getting there way in this instance by violating the rights of the street preachers, they are ultimately violating and restricting their own freedoms and rights.
      Actually, if you read the site regularly, we’ve sprung to the defense of street preaching several times. We’re not on a binary “RELIGIOUS 0/1” deal but rather making sure that the First Amendment is being upheld in all the right ways. Free Speech does, in fact, have restrictions.

      For example, those in favor of murder,
      I find this funny, because I bet you support capital punishment and just call it “justice” in order to make yourself feel better. It’s all language, isn’t ?

      What happens when a child decides to challenge his / her parents authority to have cosmetic surgery or whatever else they may choose to do. This child will go to court and demand to due as they wish.
      This is ridiculously narrow, and many children aren’t really jonesin’ for some surgery. There is definite difference in abortion and cosmetic surgery, and I’d hope you’d know that much.

      This child will go to court and demand to due as they wish. With this silly law / case precedent, how will a judge deny this?
      By determining the validity of the surgery. Obviously few kids are going to need a face lift or tummy tuck, so we can scratch off quite a few surgeries from the list.

      If this underage child can have an abortion without their parents consent or knowledge, why not breast enhancements, tattoos or some other type of mutilation? Suppose they demand their “right” to have their boyfriend / girlfriend move in? And they say we Christians are incapable of critical thinking!!!!
      Well, you aren’t capable of critical thinking. I mean, you’re freaking out with a lengthy slippery slope argument. Again: a child will have dire ramifications on a teenager’s life. A girl’s lacking bust size…not so much.

      The live-in argument is just stupid. It’s the parents’ property and they dictate its residents.

    • Kerry,

      Let me see if I can help here.

      The following are homonyms (that means “different words that sound the same”).

      There – a place
      They’re – contraction of (shorter way to say) “they are”
      Their – “belonging to them,” as in “getting their way

      Also,
      Dew – early morning moisture
      Due – payable immediately or on demand; appropriate
      Do – to perform or execute an action, as in “do as they wish

      I’m thinking that once we get past elementary school, then maybe we’ll move on to the high school debate courses, OK?

      While we’re waiting, feel free to look up the concept of logical fallacies. That’s the kind of extracurricular reading that might help you later in life.

  5. it would be interesting to note whether any other groups used microphones at the festival to express themselves.
    if they did and this was the only group cited, then the action against the group could be prejudicial, or it could be a sign of worse restrictions to come.

  6. Wait… being unable to use a mic is a lost liberty? Really?

    I truly don’t understand the need to use amplifiers. You say that God is all powerful and that your words don’t convert or convict – it’s the power of the Holy Spirit that does that. And yet you behave as if God depends on you to amplify your voice.

    It’s like, ‘trust in God for everything except for actually being heard in a crowd’. It’s like your God is all powerful except when it comes to iron chariots and crowd noise.

  7. Well, it will come to a day when street preaching is considered illegal and I will most likely be arrested for preaching Jesus in the open.
    BTW, The Methodist Church was started by a street preacher, John Wesley.
    Many nonbelievers believe in Free speech only when it applies to liberal ideas and not for conservative and Bible believers. So what anti street preacher people want is “Controlled” Freedom of Speech.
    Did you know that in the times of the Bible that the street preachers(i.e. the disciples and the others) were called “haters of men” Nothing has changed in history. Christians are going to continue to preach Jesus in public and the anti street preacher people will continue to call me and others “haters” and push for stronger “hate crimes” legislation. I say “bring it on” I will continue to love my Jesus by obeying his Great Commission.

    • ,blockquote.Many nonbelievers believe in Free speech only when it applies to liberal ideas and not for conservative and Bible believers. So what anti street preacher people want is “Controlled” Freedom of Speech.

      Mr. Moss, could you give us an example of this?

      And, assuming you provide one, how would you react to the presence of a Muslim with a bullhorn preaching the Koran at a major intersection of your town?

  8. I would love to see (more) street preachers not use microphones or amplification too.

    But, since so many are depending on man’s understanding and are so busy creating there own god and since we are so dead in our sins and since we love the darkness and since we don’t won’t our sins exposed.

    Preach on my brothers!!

    I love this bog. I learn so much about what a-theist believe.

    I found another kingpin in the evolutionist bible. (Note how I equate a-theism with evolution). All I have to do is believe in the 25 logical fallacies. And I will be converted to the atheist religion. Add this to what is believed in the a-theist religion and what they believe.

    And standby, for there’s the ever changing, inconsistent, man made, and ungodly religion. They will come up with another logical argument to support their belief. Where did logic come from and what is truth? It came from the mind of God who has revealed the truth in the Lord Jesus Christ.

    Repent and believe the gospel.

    • “But, since so many are depending on man’s understanding and are so busy creating there own god and since we are so dead in our sins and since we love the darkness and since we don’t won’t our sins exposed.”

      Are you saying that God can’t do it without amps or are you saying preachers who use amplification are dead in their sins and aren’t trusting God to use them without man’s technology?

      “Note how I equate a-theism with evolution”

      Yeah, I note it, but I don’t know why you would do this since many, many, many theists accept evolution.

      “All I have to do is believe in the 25 logical fallacies.”

      lol. Unfortunately, I think you already do.

    • One of these days, Richard, you will make an ounce of sense.

      If you keep spouting gibberish, one day it’ll form into something coherent.

      Keep at it, champ.

    • Richard I’ve tried to help you out before but you keep making the same mistakes. If you lack even a fundamental understanding of logic why are you trying to use presuppositionalism and using terms like fallacies?

      I’ve offered to help educate you and you have never responded to acknowledge or even criticise that help. It is going to be pretty hard not to view you as someone who is being wilfully ignorant. Worse: you could be viewed as bearing false witness by taking up this false image of someone who understands logic.

      • Lost liberties are exclusively found in atheistic totalitarian regimes. (And more people have died because of such forms of government.) When you take God out of the equation you can do just about anything you want to do and when man does what he wants to do you find a Hitler, Stalin, Mao… I pray that we in the US would never lose our liberties. Thank you Lord Jesus for the men and women who have died to preserve our rights.

        And thank you for your concern for me. But, wherein the atheist code of conduct is it ‘written’ thou shall be helpful. Or is this something you learned from the Lord Jesus when he said “do unto others as you would have them to unto you.” I have a consistent understanding of why I ought to be helpful, because God is good and I’m to reflect that same goodness. Because I’m made in his image.

  9. Amen Richard!

  10. Amen Richard! Keep talking past people like that, never listening to them, never answering them, tell them what they really think, and we non-christians certainly never have to worry that you might actually convert someone to Christianity.

    You are doing a perfect job.

    • God does the saving.

      • Yes, that’s precisely the standard answer given to excuse any lack of effectiveness on your part.

        Isn’t it great when you don’t have to actually produce any results!

      • Didn’t I bring this up before? That ‘God does the saving’ seems to be used by you guys as an excuse for poor behavior?

  11. Here’s a reasonable arguement. God exists because he has revealed himself in his word. The Holy Bible. So, what’s your arguement for believe evolution is true?

  12. What is your reason for the need to be consistent, since in an evolutionary view it shouldn’t matter what I believe. My thoughts are my thoughts and are valid because I believe them to be true. In an evolutionary view what difference does it even make what I believe. In an evolutionary view why even comment why even try to when an arguement.

    Yes, I’m being consistent with my beliefs. The Lord calls one to plant and one to water and one to reap. In all this God calls out and man must recognize his (sinful) condition before a Holy God and repent and believe the gospel.

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