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City responds to free speech suit

Street preacher filed action stating rights violated at 2010 Apple Blossom Festival

By Alex Bridges -- abridges@nvdaily.com

HARRISONBURG -- An attorney for Winchester argues the city's noise ordinance does not violate free speech rights as claimed in a street preacher's lawsuit.

A complaint filed in U.S. District Court in Harrisonburg alleges Winchester police officials denied the rights of Michael Marcavage to preach to crowds at the 2010 Shenandoah Apple Blossom Festival. The lawsuit also claims the noise ordinance police used to order Marcavage to stop preaching through an amplified microphone remains unconstitutionally vague. Marcavage is identified as director of Pennsylvania-based Repent America.

The lawsuit, filed on Marcavage's behalf by the Rutherford Institute, a rights group in Charlottesville, identified Winchester Police Chief Kevin Sanzenbacher and Lt. J.M. Danielson. U.S. District Judge Samuel G. Wilson in July granted in part a defense motion, and dropped Danielson and Sanzenbacher as defendants in the suit based on their "qualified immunity." Wilson let stand the plaintiff's claims that the noise ordinance is vague and violates the constitutional right to free speech. The judge also has denied a plaintiff's motion for a preliminary injunction to stop the city from enforcing the ordinance.

Ahead of an evidentiary hearing set for next week, Staunton defense attorney Rosalie Pemberton Fessier filed a motion Wednesday for summary judgment, asking the judge to dismiss the lawsuit.

Fessier notes in a memorandum in support of the motion "plaintiffs were never refused their right to speak their message" at the festival and authorities had placed no prior restraint on their right to speak in a public forum. In fact, as Fessier states, a man identified as Nathan Magnuson, not Marcavage, used the amplified microphone to preach to passersby. Magnuson is not a member of Repent America, according to Fessier.

Danielson received a complaint from an unidentified male who said he felt uncomfortable with the person using the amplifier and microphone, according to Fessier. The officer observed the activities and concluded the noise from the amplifier to be very loud considering the ambient sound at the festival and thus violated the ordinance, Fessier states. Danielson advised both men to turn off the amplifier and the men complied. A third person continued to preach without the use of the amplifier.

As Fessier states, Marcavage's evidence regarding the conversation he had with Sanzenbacher, made in an attempt to appeal Danielson's request, contradicts the claims of the suit. Marcavage had claimed police threatened to arrest and cite him should he continue to use the amplifier, but admitted during deposition authorities mentioned only they would enforce the ordinance should they receive complaints, according to Fessier. Sanzenbacher testified the agency would have taken further action in the event it had received a second complaint, which officers would refer to a magistrate.

Fessier also cites evidence as seen in videotaped footage of the street preaching activities. Footage showed Marcavage resumed using the amplifier and microphone for the remainder of that day without city interference, according to the attorney, in contradiction of the complaint.

In her memorandum Fessier states the plaintiffs did not suffer a "constitutional injury" and therefore lack standing to pursue their claims.

"Mr. Magnuson who was standing with Marcavage was limited in using the amplifier, at most approximately 26 minutes while the police were responding to and investigating a citizen complaint and considering the applicability of the Ordinance," Fessier states. "However, individuals continued to preach during that time without the amplifier."

"Even in a public forum, the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information," Fessier argues. "Additionally, the Ordinance leaves open ample alternative channels of communication, as it only regulates volume: it does not restrict the unamplified speaking of messages at a reasonable volume, the posting of messages, picketing, use of mail or other means of transmitting messages that do not create excessive noise."

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