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