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Anti-gay street preachers take free-speech case to appeals court

The preachers claim their First Amendment rights were violated when police forced them to move during their demonstration against a gay pride event in Tennessee.

CINCINNATI (CN) — A group of street preachers argued before a Sixth Circuit panel Thursday that an East Tennessee city violated their rights by restricting their protest of a local LGBTQ event.

The 2018 event, named TriPride for Tennessee's Tri-Cities area, was held in Founders Park in Johnson City and drew about 10,000 attendees. During the pride event, Jeremiah Waldrop and others arrived to preach at and protest against the festival.

According to court documents, the street preachers were approached by police and moved to a sidewalk in a different part of the event because they were allegedly creating a disturbance. They were allowed to continue to preach in the new area for the remainder of the event.

The preachers later sued the city and police officers for allegedly violating their free speech and for the city’s failure to properly train its officers for the event.

U.S. District Judge Ronnie Greer in Greenville sided with the city last November, finding the street preachers were rightly moved because of their actions.

“Although plaintiffs undeniably had a First Amendment right to exercise their free speech while attending the TriPride festival, they did not have the right to interfere with TriPride’s expressive message by disrupting the festival,” wrote Greer, a George W. Bush appointee. “Yet the evidence shows that plaintiffs did just that, and it establishes, without any dispute as to a genuine issue of material fact, that the officers moved plaintiffs from Founders Park to the sidewalk because of their actions and not because of the content of their message.”

The preachers appealed that ruling to the Cincinnati-based Sixth Circuit, and the three-judge panel pressed attorneys for both sides during a 30-minute hearing Thursday.

Arguing for the plaintiffs, attorney David Markese said the suit was two-pronged. There is the issue of a violation of free speech rights, and the city should not have granted the TriPride organizers full control over who could and could not attend the event, he said.

“Instead, the city erroneously instructed officers that TriPride could exclude anyone from the event area for any reason,” Markese wrote in a brief submitted to the court. “There is no evidence in the record of any content-neutral reason for removing them, and no one else was removed. The evidence indicates that they were removed because TriPride did not want them there.”

Chief U.S. Circuit Judge Jeffrey Sutton, a George W. Bush appointee, seemed interested in whether the entire matter was moot.

“Why is this case not moot?” Sutton asked Markese. “It seemed like the ligation was mainly about this one parade/event, and that's come and gone.”

Markese answered by saying that his clients were concerned that their future preaching could be met with the same treatment they received at the 2018 TriPride event.

Both the city and preachers agreed in their arguments that the district court erred by ruling based upon the disputed facts of the case. U.S. Circuit Judge Guy Cole, a Bill Clinton appointee, asked if the case should be sent back to the lower court for new proceedings.

“The operative facts are not in dispute," Markese responded.

Arguing on behalf of the city, attorney Erickson Herrin told the judges there was no violation of the plaintiffs' free speech rights.

“The street preachers’ First Amendment rights are not superior to anybody else’s,” Herrin said.

Sutton responded by questioning why the free speech rights of the street preachers would be discounted.

“Why shouldn’t it be just the opposite, as long as there is no actual interference [or] obstruction? When you have two speakers, the First Amendment’s even more in play,” Sutton said.

Herrin went on to say that given the language used by the street preachers, it is difficult to say if they were attempting to participate, interfere or disrupt TriPride’s message.

In the city’s brief, Herrin further explained that TriPride organizers had “an expressive message entitled to First Amendment protection” and that the police did not fully remove the street preachers from the event.

“The officers moved the street preachers to a sidewalk at the edge of Founders Park. The street preachers’ own video and testimony demonstrates that they interacted with festival attendees for hours. Moreover, they did so with amplification, and [a police captain] refused a request from TriPride to move the street preachers further away,” the brief states.

Rounding out the three-judge panel was U.S. Circuit Judge Chad Readler, a Donald Trump appointee. No timetable has been set for the court's decision.

Follow David Wells on Twitter

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