(CN) -The 3rd Circuit vacated the misdemeanor convictions of an anti-abortion protestor arrested outside Philadelphia’s Liberty Bell Center after finding that authorities stopped the rally not because it lacked a proper permit or threatened public safety but because they objected to posters depicting aborted fetuses.
Rangers at Independence National Historical Park, which houses the Liberty Bell Center, asked Michael Marcavage to relocate his bull-horn-blasted protest several times, even giving him an “oral permit” to move to a “free speech area” not far away. But Marcavage, whose protests were a regular fixture at the park in 2007, refused, preferring to stay outside the 6th Street entrance to the center where a crowd of people was lining up to see the famous cracked bell.
After several warnings, rangers arrested, removed and cited Marcavage for violating the terms of a permit. They later mailed him a second citation for interfering with agency functions.
A magistrate judge found Marcavage guilty of both charges and rejected his First Amendment defense. A district court affirmed the convictions, for which Marcavage was sentenced to a year’s probation.
Marcavage appealed, arguing that the evidence against him was insufficient and that the arrest violated his First Amendment rights.
The Philadelphia-based appellate panel agreed, ruling that the lower courts ignored the plain language of the permit statute and “wrongly concluded that the 6th Street sidewalk was a nonpublic forum.”
The three-judge panel pointed out that the operative statute clearly requires that protest permits be written. Since Marcavage’s permit was not written, it was invalid, and thus he cannot be convicted for violating its terms, the panel ruled.
Marcavage’s conviction for interference also violated his right to free speech, according to the panel, because the public sidewalk near a national park is an obvious public forum.
While the arresting rangers testified that they removed Marcavage because they were worried about pedestrian traffic flow and public safety at the busy park, the panel found “inconsistencies and gaps in the testimony of the government’s witnesses” suggesting that Marcavage’s removal was actually motivated by the content of his speech.
“The rangers’ testimony reflects that they: observed that Liberty Bell visitors and pedestrians were disturbed by and complained about Marcavage’s preaching and the graphic images on the signs displayed by Marcavage’s group; were concerned by visitors’ reactions to that message and those signs; and thought it unfair that those individuals were being subjected against their will to listening to that message and viewing those signs,” Judge D. Michael Fisher wrote for the panel. “Significantly, they testified that their decision to remove Marcavage was a product of, among other things, those concerns. The government in effect ratified what it perceived as listener hostility to Marcavage’s speech when it silenced that speech. That act, coupled with its impetus, constitutes a content-based restriction on speech.”
Fisher added that “while maintenance of the public order is a legitimate objective, its pursuit does not license the government to deprive an individual of a constitutional right irrespective of the circumstances. To conclude otherwise would permit the government to cast off the First Amendment’s protective cloak with no more than a scripted invocation of amorphous interests.”