WINCHESTER, Va.—The Rutherford institute has filed a First Amendment lawsuit in federal court against the City of Winchester, its police chief and another police officer, charging that the City’s noise ordinance, which prohibits sounds that “annoy” or “disturb” others, is unconstitutional. The case arose out of events that transpired during the 2010 Apple Blossom Festival in which a Christian street preacher was prevented from preaching about his religious beliefs on a public sidewalk after a passerby complained that he felt “uncomfortable” with the message.A copy of the complaint in Marcavage v. City of Winchester is available here.”The First Amendment does not permit free speech to be conditioned upon how others feel about the message,” said John W. Whitehead, president of The Rutherford Institute. “We cannot stand idly by while local government officials bully citizens out of exercising their First Amendment rights.”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, and this made Marcavage’s expression a violation of the City’s noise ordinance. 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 that Marcavage must cease and desist using the microphone.
Under the City’s noise ordinance, sounds that “annoy” or “disturb” others are prohibited. In filing suit in federal court, Rutherford Institute attorneys have 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 point 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.