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By Alex Bridges | NVDaily.com | Nov. 3, 2010
HARRISONBURG -- A civil liberties group claims a Winchester noise rule violates a person's right to free speech.
The Rutherford Institute filed a lawsuit in U.S. District Court in Harrisonburg on Wednesday on behalf of a Christian street preacher who was stopped by police from using a microphone and amplifier to speak to crowds at the Shenandoah Apple Blossom Festival in May.
The Charlottesville-based group states in a news release also issued Wednesday the city's noise ordinance's prohibition of sounds that "disturb" or "annoy" is unconstitutional.
The group's president, John W. Whitehead, states in the release the First Amendment "does not permit free speech to be conditioned on how others feel about the message."
Michael Marcavage, the director of Repent America, is suing the city along with Police Chief Kevin Sanzenbacher and Lt. J.M. Danielson, of the Winchester Police Department, for alleged violation of his First and 14th amendment rights.
Rita M. Dunaway, an attorney with On Point Legal Consulting LLC, represents the plaintiffs in cooperation with the Rutherford Institute.
Repent America is an unincorporated, evangelistic and Christian liberties organization based in Philadelphia, which, according to the suit, "regularly engages in free speech activities on sidewalks and streets as an expression of its members' sincerely-held religious beliefs."
The First Amendment protects such expression, speech and free exercise of religion, according to the lawsuit. The defendants violated these rights by making Marcavage stop using the microphone, a requirement that was not the least restrictive means, the suit states. The defendants also didn't apply the ordinance in a "viewpointneutral fashion" by basing their order on a person's complaint of feeling "uncomfortable," according to the suit.
The plaintiffs have asked the court to keep the defendants from enforcing the ordinance and enter a judgment declaring the law unconstitutional, and for damages to be determined at trial.
Parts of the ordinance violate the First Amendment and "create a chilling effect on expression that is protected," the lawsuit states.
Portions of the ordinance violate the 14th Amendment because they are "unconstitutionally vague, failing to provide adequate notice as to what expressive conduct is prohibited," and "vest unfettered discretion in City police officers to make decisions concerning enforcement of the Ordinance absent sufficient objective guidelines," the suit states.
"Plaintiff Michael Marcavage's sincerely-held religious beliefs compel him to proclaim the Gospel of Jesus Christ and preach the Word of God to the masses," the suit states.
Marcavage claims Sanzenbacher said in a phone conversation prior to May 1 that the use of a speaker and microphone would comply with the ordinance. The plaintiff did that on May 1 to speak to the crowd downtown. But a person's complaint prompted Danielson to order Marcavage to stop using the microphone, and Sanzenbacher upheld the request, the suit states.
City Attorney Anthony Williams, City Manager Jim O'Connor and members of council have not responded to Marcavage's May 14 request for $2,000 in damages and written confirmation police would be trained "to prevent further violations, the plaintiff claims.