1ST AMENDMENT UNDER FIRE Wnd.com August 06, 2011
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.
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 Rutherford Institute's memorandum in support of its motion for summary judgment in Marcavage v. City of Winchester is available here.
Rutherford's attorneys cite 009-6-044 – Tanner v. City of Virginia Beach when they asked the court to strike down the City's ordinance as a violation of the First and Fourteenth Amendments to the U.S. Constitution pointing out that the Virginia Supreme Court struck down a Virginia Beach noise ordinance in 2009 that was similar to the Winchester law.
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"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, 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.
WINCHESTER, Va.— The Rutherford Institute has asked the Federal District Court for the Western District of Virginia to issue a summary judgment in Marcavage v. City of Winchester in favor of a group of street preachers who were prevented from speaking 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.
The Rutherford Institute's memorandum in support of its motion for summary judgment in Marcavage v. City of Winchester is available here.
"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."
Rutherford's attorneys cite 009-6-044 – Tanner v. City of Virginia Beach when they asked the court to strike down the City's ordinance as a violation of the First and Fourteenth Amendments to the U.S. Constitution pointing out that the Virginia Supreme Court struck down a Virginia Beach noise ordinance in 2009 that was similar to the Winchester law.