Federal Appeals Court: Sidewalk Preacher Has No Right to Shout on Church Street

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UPDATE below with comment from William Ray Costello.

A federal appeals court has ruled that Burlington sidewalk preacher William Ray Costello has no legal right to shout the gospel on Church Street — even as one of the judges questioned the constitutionality of Burlington's noise ordinance.

Costello (pictured) — a born-again Christian from Milton who evangelizes with one sign showing an aborted fetus and another reading "Fags Burn in Hell" — has battled the city of Burlington in federal court since 2007, when a police officer threatened to ticket him for shouting Bible verses on the pedestrian mall.

Costello was preaching on a Saturday morning in June, when a jewelry store manager called police to complain of the noise.

Costello, who worships at the Bethel Anabaptist Tabernacle in Lyndonville, maintains the First Amendment gives him the right to preach at any volume, and that past court decisions have upheld that right in similar instances. The city argued that Costello was violating the noise ordinance and disturbing the peace of people living, shopping and dining out on the pedestrian mall. Costello was free to preach at a lower volume, city lawyers argued, but chose not to.

Click here and here for more of the back story.  

After losing in U.S. District Court in Burlington, Costello appealed to the U.S. Court of Appeals for the Second Circuit. On Monday, a three-judge panel ruled against Costello and upheld the city noise ordinance as constitutional. (Click here to download the 26-page decision).

"Respect for Costello's right to preach does not trump the rights of everyone else," wrote Chief Judge Dennis Jacobs. "In order to secure for Costello a right to preach at the top of his lungs in a pedestrian mall lined with shops, cafes and dwellings, we would have to impair the rights of all other Burlington residents who shop, work and dine in the same compact area."

Like other rulings, this one notes that the Burlington police officer wasn't asking Costello to stop preaching; only to do it more quietly. In that respect, Jacobs points out, Costello's free speech rights were preserved. Costello has said the Bible commands him to lift up his voice "like a trumpet" and that preaching softly defeats the purpose of the activity.

“If I didn’t like jazz and I was sitting in a restaurant,” Costello told Seven Days previously, “do I have the right to stop them from playing their music?”

Costello couldn't immediately be reached for reaction.

Though all three judges sided with the city, Circuit Judge Rosemary S. Pooler penned a "concurring opinion" in which she raised doubts about the ruling and the urgency of deciding the constitutionality of Burlington's noise limits.

Pooler, a Clinton appointee, writes that the city failed to lay out "any evidence that residents were disturbed, diners were unable to converse or shop-owners had difficulty soliciting customers. The evidence does not even tell us whether there was a single apartment within earshot of Costello." Costello may well have been disturbing people around him, Pooler admits, but "no support for any of these conclusions is found in the record before us."

It's worth quoting Pooler's opinion a little more for the way it contextualizes Costello's preaching:

"Street preaching, while undoubtedly bothersome to some, has a long history in this country; it strikes me of at least some import that religious groups seeking protection from persecution for their religious activities by state governments were among the principal supporters of the Bill of Rights. In this case, the burden was on the government to establish that Burlington's speech restriction is justified as narrowly tailored to serve a significant government interest."

She concludes: "Without more of a record than we have before us, to conclude that the ordinance is plainly constitutional strikes me as too much of a thumb on the scale, especially where, as here, we need not reach the constitutional question to resolve this case."

***UPDATE 2/15/10, 4:51 p.m.***

Reached at home later Tuesday, Costello tells Seven Days he learned of the ruling yesterday but hasn't yet read the decision. Asked if he'd press on or give up, Costello, who is pursuing the case without a lawyer, says, "I don't know. I want to check into the Supreme Court."

"They polluted the First Amendment," Costello says of the ruling. "If I can't preach on Church Street, I can't preach anywhere."

Costello fears the ruling will embolden other Vermont towns to use noise ordinances to bar him from preaching in public spaces. He claims a police officer in MIlton approached him recently outside a Hannaford about this preaching. Costello hasn't evangelized in Burlington since 2007, but says he plans to return there in the near future to do it downtown, though not on Church Street.

*** Ed. note: Thanks to the eagle-eyed Burlington attorney who just called and corrected a small but crucial error in Pooler's quote. We had incorrectly placed the prefix "un" before constitutional in the final sentence of the original post. Whoops! The quote is now fixed. ***

Comments

[Jcarter]

I would think that the picture of the aborted fetus or use of the word "fag" would be more of an argument for removing the man then the volume of his voice. There are indecency standards and seriously, I don't want my toddler children to walk by a picture of an aborted fetus. There is a limit there.

[Tim]

William Ray Costello may think he was preaching but what he was really doing was antagonizing people and reinforcing stereotypes of the "religous nutjob". It would in fact be hard to come up with a better method than his for discrediting Christianity.

[Bill Simmon]

I would have liked to hear the judges discuss the ruling from a "compared to what" perspective. Costello has a point about jazz music. Church Street has all sorts of loud stuff going on that could potentially violate a noise ordinance (assuming the ordinance is measured in decibels). How did the police decide that this was distinct from, say, a musical performance? Is it a permitting process? Is that standard being applied evenly? Etc.

JCARTER, if the goal was to stop the man from doing his schtick, the noise ordinance was certainly the most effective route (and indeed it worked). IANAL, but the Constitution (and SCOTUS precedent) is pretty clear in it's protections of individual words and images in a political context, which I imagine it would be very easy to argue this was. Look no further than the Westboro Baptist Church for examples. Just because you and I think it's ugly doesn't mean we get to shut other people up. That's what makes it a "right" to free speech instead of a suggestion — it's a special claim that those with unpopular ideas get to make against the majority opinion. They get to express themselves even if most everyone else thinks they ought not.

[Jcarter]

Again, Bill there are decency standards. You can't go stand on church st in the buff for example without getting cited. I am aware of the right to free speech and there are many of those that cross a line. The image he displays is there for shock, not for any type of statement. But it certainly is a slippery slope. And I'm not sure a public place where children frequent is an appropriate place. Certainly not a very "christian ideal" but usually the extremists have corrupted the true ideals from which they preach.

Also Costello's point about jazz is actually way off the mark. If he goes into a private establishment and doesn't the like the music he can go somewhere else. He is right though that we can't stop someone playing a trumpet out on Church anymore then we can stop him from preaching, ultimately his argument fails on the fact that no one has told him he can't preach there. He can go sit there right now, as long as he is below the decible level that BTV has set forth.

[JVT]

Perhaps Mr. Costello would be better off volunteering his time time spent as a right wing religious nut job at non profits set to benefit children. Actually help out and make a difference... you know? On second thought this guy should not be around children with his one way street narrow mind. If he is so for the cause, I think he could find his time a lot more well spent then by shouting and screaming and being a bigot.

[Jcarter]

JVT,

Why do you assume that Mr. Costello is of the right wing? That's a bit prejudiced don't you think?

[B. A.]

Hey JCarter... Interesting you should mention decibel level.. What is that decibel level you speak of? Did the officer use his handy decibel meter (standard issue I'm sure), to evaluate compliance?

[Bungalow Benchly]

JCARTER: I thought public nudity was legal in Burlington outside of city parks. And so, one could stand in the buff on Church Street without being cited, so long as one didn't disrobe on Church Street. Am I wrong? If so, I should put my clothes back on!

As for this guy's right to be there, he's got as much right as anyone else with a point of view, so long as he keeps his voice down and follows the same rules as everyone else. What is shocking and inappropriate to you might be shocking and completely appropriate to someone else. Fortunately, it's not up to us to decide what is right and what is wrong. The law is (ideally) unbiased and should protect Mr. Costello's right to be there just as it should protect the rights of students parading around with "Free Hug" signs. That's the only way to ensure that future minorities are heard.

[Andy Bromage]

Hey all,
The ruling, if you download it, gives a pretty good synopsis of how this all went down, including the fact that the cop who first arrived on scene was about a football field's length away from Costello when he heard him shouting. From what I've read, the courts have pretty much taken that as proof that he was exceeding the decibel level. Plus, there's apparently a video that Costello shot of the incident that has been seen by a judge -- but not by me. I'm trying to get my hands on it.

[Tim]

From Burlington website (note that they don't actually have the noise ordinance on the page but sum it up for us slobs - sheesh)

Unreasonable noise is prohibited. Noise is unreasonable when it is unreasonably loud given the time, place, and nature of the noise. Noise that is plainly audible between apartments or houses between the hours of 10:00 pm and 7:00 am is considered unreasonable. Sound systems, TVs, and radios cannot be played in an unreasonably loud manner.

http://www.ci.burlington.vt.us/codeenforcement/noisepollution/

State Statute:
§ 1026. Disorderly conduct

A person who, with intent to cause public inconvenience, or annoyance or recklessly creating a risk thereof:

(1) Engages in fighting or in violent, tumultuous or threatening behavior; or

(2) Makes unreasonable noise; or

(3) In a public place uses abusive or obscene language; or

(4) Without lawful authority, disturbs any lawful assembly or meeting of persons; or

(5) Obstructs vehicular or pedestrian traffic, shall be imprisoned for not more than 60 days or fined not more than $500.00 or both. (Amended 1971, No. 222 (Adj. Sess.), § 5, eff. April 5, 1972.)

[Tim]

City of Burlington Noise Ordinance
Sec. 21-13. Noise control ordinance.
(a) Purpose. The purpose of this section is to preserve the public health, safety, and welfare by prohibiting excessive and disturbing noise and to prevent noise which is prolonged or unsuitable for the time and place and which is detrimental to the peace and good order of the community. It is the goal of this section to allow all residents of our city to peacefully coexist in a manner which is mutually respectful of the interests and rights of others.
(b) Prohibited noise offenses:
(1) General prohibition. It shall be unlawful for any person to make or cause to be made any loud or unreasonable noise. Noise shall be deemed to be unreasonable when it disturbs, injures or endangers the peace or health of another or when it endangers the health, safety or welfare of the community. Any such noise shall be considered to be a noise disturbance and a public nuisance.
(2) Express prohibitions. The following acts, which enumeration shall not be deemed to be exclusive, are declared to be noise disturbances:
a. Radios, television sets, musical instruments, phonographs and similar devices. The operation or permitting the use or operation of any musical instrument, radio, television, phonograph, or other device for the production or reproduction of sound in such a manner as to be plainly audible through walls between units within the same building, from another property or from the street between the hours of 10:00 p.m. and 7:00 a.m. or in such a manner as to unreasonably disturb the peace, quiet or comfort of the public.
b. Motor vehicle sound equipment. The operation or permitting the operation of any radio, stereo or other sound amplification equipment from a motor vehicle that is audible at twenty-five (25) feet from such vehicle. The term "motor vehicle" shall mean any car, truck or motorcycle.
c. Parties and other social events. Notwithstanding section (b)(1), it shall be unlawful for any person who is participating in a party or other social event to actively make unreasonably loud noise. A party or other social event is defined as a gathering upon the premises of one or more persons not residing at the premises. Unreasonably loud noise is noise that unreasonably interferes with the peace or health of members of the public or is plainly audible between the hours of 10:00 p.m. and 7:00 a.m. through the walls between units within the same building, from another property or from the street. It shall also be unlawful for any resident of a premises to allow a party or other social event occurring in or about the premises to produce unreasonably loud noise. There is a rebuttable presumption that all residents of the premises have allowed such party or other social event to occur in or about the premises. All residents of the premises are responsible for such unreasonable noise made, each having joint and several liability.
d. Machinery. The operation or permitting or directing the operation of any power equipment or machinery outdoors between the hours of 9:00 p.m. and 7:00 a.m. except in emergency situations.
e. Construction noise. The excavation, demolition, erection, construction, alteration or repair of any premises or structure between the hours of 9:00 p.m. and 7:00 a.m. except in emergency situations.
f. Loudspeakers. The use of loudspeakers or other sound amplification equipment upon the public streets for the purpose of commercial advertising or attracting the attention of the public to any building or site.
(c) Exemptions. Noise from the following sources shall be exempt from the prohibitions specified herein:
(1) All safety signals and warning devices or any other device used to alert persons to any emergency or used during the conduct of emergency work, including, but not limited to, police, fire and rescue vehicle sirens.
(2) The repair and maintenance of municipal facilities, services or public utilities when such work must be accomplished outside daytime hours.
(3) Snow removal equipment operated within the manufacturer's specifications and in proper operating condition.
(4) Musical, recreational and athletic events conducted by and on the site of a school or educational institution.
(5) Events and activities conducted by or permitted by the city. Persons operating an event or activity under authority of an entertainment permit, parade/street event permit, solid waste license, or parks special use permit shall comply with all conditions of such permits or licenses with respect to noise control issues.
(6) Construction or repair work which must be done to address an emergency health or safety concern and that cannot be accomplished during daytime hours and which is not work which includes normal maintenance and repair.
(d) Notification by property owners of rental housing. Owners of rental housing shall be required to provide a copy of this section to a tenant at the start of the tenancy. However, the failure of an owner to provide a copy of the ordinance shall not be a defense to a violation of this section.
(e) Enforcement:
(1) First offense. A first offense of any provision of this section, except subsection (b)(2)(c.) (Parties and social events) by a person during any twenty-four-month period shall be deemed a civil ordinance violation and shall be punishable by a penalty of a minimum fine of two hundred dollars ($200.00) to a maximum fine of five hundred dollars ($500.00), which may, at the discretion of the prosecuting official, be waived in whole or in part upon the successful completion of a restorative or reparative justice program through the Community Justice Center. The waiver penalty for a first offense of any provision of this section except subsection (b)(2)(c.) (Parties and social events) by a person during any twenty-four (24) month period shall be a fine of two hundred dollars ($200.00).
(2) A first offense of subsection (b)(2)(c.) (Parties and social events) by a person during any twenty-four-month period shall be deemed a civil ordinance violation and shall be punishable by a penalty of a minimum fine of three hundred dollars ($300.00) to a maximum fine of five hundred dollars ($500.00) which may, at the discretion of the prosecuting official, be waived in whole or in part upon the successful completion of a restorative or reparative justice program through the Community Justice Center. The waiver penalty for a first violation of subsection (b)(2)(c.) (Parties and social events) shall be a fine of three hundred dollars ($300.00).
(3) Second offenses. Except for violations of subsection (b)(2)(c.) (Parties and social events), a second offense during a twenty-four (24) month period shall be deemed to be a civil offense and shall be punishable by a minimum fine of three hundred dollars ($300.00) to a maximum fine of five hundred dollars ($500.00) which may, at the discretion of the prosecuting official, be waived in whole or in part upon the successful completion of a restorative or reparative justice program through the Community Justice Center. The waiver penalty shall be a fine of three hundred dollars ($300.00).
(4) A second offense under subsection (b)(2)(c.) (Parties and social events) during a twenty-four-month period shall be deemed to be a civil offense and shall be punishable by a penalty of a minimum fine of four hundred dollars ($400.00) to a maximum fine of five hundred dollars ($500.00) which may, at the discretion of the prosecuting official, be waived in whole or in part upon the successful completion of a restorative or reparative justice program through the Community Justice Center. The waiver penalty for a second violation of subsection (b)(2)(c.) shall be a fine of four hundred dollars ($400.00).
(5) The third and any subsequent offense within a twenty-four (24) month period shall be deemed a criminal offense and shall be punishable by a fine of five hundred dollars ($500.00).
(6) The city shall notify the owner of any property upon which a noise control ordinance violation has occurred and a person has been given a civil Vermont Municipal Complaint or criminal citation pursuant thereto that such complaint or citation has been issued.
(7) Any law enforcement officer may issue a municipal complaint ticket or criminal citation for offenses of the noise control ordinance.
(Ord. of 5-6-96; Ord. of 6-22-98; Ord. of 8-14-00; Ord. of 5-21-01; Ord. of 2-18-03; Ord. of 1-12-10)
Charter references: Power of city to prevent noise, § 48(V).
Cross references: Street musicians and entertainers licensed, § 4-4; boisterous conduct in city cemeteries prohibited, § 9-9; disorderly conduct at fires, § 13-7.
State law references: Disturbing religious meetings, 13 V.S.A. § 971; breach of peace by disorderly acts, 13 V.S.A. § 1021(b); noise at night, 13 V.S.A. § 1022; disturbing meetings, 13 V.S.A. § 1023.
Secs. 21-14--21-16. Reserved.
Note: See the editor's note to § 21-13.

http://library4.municode.com/default-test/home.htm?infobase=13987&doc_action=whatsnew

[Bill Simmon]

JCARTER, I'm not spoiling for a fight over this, and I imagine you and I are not so far from each other on this issue, but I think you're getting a couple of things confused that are worth clarifying...

"You can't go stand on church st in the buff for example without getting cited."

I believe the law in BTV is that you actually *can* stand there in the buff (assuming you don't freeze) without getting cited. There is no public nudity ordinance, except, I believe it may be illegal to *undress* in public, but actually being naked is fine, hence World Naked Bike Ride Day or whatever it is they do every year. Plus there are examples of federal courts upholding individuals' rights to public displays of nudity in the face of local ordinances that ban public nudity, when the displays are in a political context. The one I'm thinking of was a Daytona woman who was arrested for being topless at an anti breast cancer march back in 2004, but there are other examples too.

"I am aware of the right to free speech and there are many of those that cross a line."

And the point I was making (perhaps inarticulately) was that you and I (and voters) don't get to choose where the line is. Only federal courts can adjudicate such things and traditionally, courts have been reticent to allow government censorship of words and images, no matter how unpopular, especially when they are presented in a political context (and abortion and gay rights are widely considered political subjects).

The "protect the children" argument only gets you so far in the courts. I, for one, am not too happy that kids can turn on the TV and see shows that promote anti-evolution, anti-science garbage. I think I have a good argument that such material could actually be bad for children in certain contexts. Does that mean I should have a right to demand that those programs not be broadcast at times when children might see them?

"Costello's point about jazz is actually way off the mark. If he goes into a private establishment and doesn't the like the music he can go somewhere else. He is right though that we can't stop someone playing a trumpet out on Church anymore then we can stop him from preaching,"

I read the jazz point as being exactly your trumpet comment. Also, jazz at Leunig's in the summer is pretty loud out on the street — louder, I'd wager, than any one guy yelling about Jesus. So are we really enforcing a noise ordinance, or is this just another example of the powers that be on Church Street (shop owners and the marketplace commission) wanting to force a particular kind of culture onto the public street? I've written this before in Blurt comments (about street buskers and the no-sitting-on-the-sidewalk-law), but when will these folks realize that street buskers and homeless people and panhandlers and Jesus freaks are part of the culture of Burlington too, and they can't force a public city street into their perfect, quaint ideal of what Church Street ought to be.

[Bill Simmon]

Jeez, I just re-read my long comment and I sound like I think this was some miscarriage of justice. I don't. I think the noise restriction is reasonable, I just want to be sure that the law is being enforced evenly and that it's not being used as a bludgeon against "unsavory" types or whatever.

Looking at the noise ordinance (thanks for posting that, BTW) I am a bit troubled by the "nature of the noise" part of this bit:

"Noise is unreasonable when it is unreasonably loud given the time, place, and nature of the noise."

I guess my question is "according to who?"

[Tim]

Unreasonable noise is noise that is unreasonable: what's unclear about that? He asked with conscious irony.

Also the answer to the question "according to who(m)":

7) Any law enforcement officer may issue a municipal complaint ticket or criminal citation for offenses of the noise control ordinance.

[Tyler Machado]

Just a heads-up, everyone: Andy updated the original post with comments from William Ray Costello.

[Jeff]

Last time I checked, Milton was just slightly in need of saving as well. Why doesn't he start in his hometown first?

[Jcarter]

I think my comment was misunderstood. I will try to clarify.

I am a huge proponent of Free Speech.

Mr. Costello is entitled to his free speech and in fact hasn't been denied that. He was told to quiet down. How the cops busted him I personally am unconcerned with.

Regarding the nature, particularly the image he uses, I think is disturbing and is there not to make a political statment, but rather for the shock value. I think Mr Costello is using it for just that, and by doing so he is not upholding Christian ideals by exposing children to such images.

I do understand he has a right to it, and that we need to be careful about infringing upon that right, remembering that free speech is about freedom to express political opinion without fear of reprecussion, and not necessarily intended to simply allow people to say or do whatever they please. As for indecent exposure, regardless of BTV, there are in fact places where you can't simply stand nude. My only point with the comment that there is precedence for regulation of what is decent and not.

[Bungalow Benchly]

But JCARTER, who are we to decide what are Christian ideals and what are not? Every religion is different (hell, every branch of Christianity is different!) and what may be shocking to you is the norm for someone else. Limiting someone's freedom of speech simply because we disagree with his message and/or his way of delivering his message is dangerous. Personally, I'm offended by a number of aspects of Catholicism, Scientology, Mormonism, Lutheranism, Islam, the Twelve Tribes, etc, but I'd be offended even more if the government stopped them from speaking up.

[Jcarter]

BB,

we aren't to decide what christian ideals are. God did that for us. He even wrote them down so we wouldn't forget.

[Bungalow Benchly]

And every denomination has a different interpretation of those scriptures. Some denominations think Mr. Costello is spot on. Some denominations probably think he doesn't go far enough with his preaching. No matter what anyone thinks, Mr. Costello thinks he's on the side of God.

My point is religious speech should not be regulated because what is decent to one person might be indecent to another and it's not our job or the government's to decide which is right.

[Tim]

Shouting : "Fags Burn in Hell" at people on Church Street is Free Speech? Really? Some might interpret it as a threat, as intimidation.

[Tim]

"My point is religious speech should not be regulated because what is decent to one person might be indecent to another and it's not our job or the government's to decide which is right."

Except for people dancing naked for money. That's a no-brainer? ;)

[Bungalow Benchly]

Nope, stripping should be legal, too. I don't like it, but as I've said before, that doesn't mean it should be shut down.

And Tim, "Fags Burn in Hell" is an opinion/belief, not a threat or intimidation. Shut him down for that, and you need to shut down anyone who says "You need to be saved to go to Heaven." If Mr. Costello walked up to someone and said "I'm going to kill you," well then, that's another story.

[Jcarter]

BB,

You have a different issue then I do. I am not arguing regulation of free speech issues.

My point is christian ideals do not hold Mr. Costello's behavior. While there are minority groups that read into and interpret the scriptures in atypical ways, the majority I think would agree that subjecting children to mutilated picutres of a fetus does not agree with the values taught by Christians.

One last note. Mr. Costello's showing pictures to children is not religous. If he was doing it to his own toddler DCF would be investigating him for mental and emotional abuse.

Moreover, people have been arrested for distributing grotesque images. Mike Diana spent time in jail for drawing obscene images and distributing them. Free speech is not absolute and there are laws to bar indecent and obscene images, although admittedly they most often are applied to sexual images I do not believe sexual nature is a legal requirement.

[Tim]

I can't speak for gay people, but I can assume if you've spent your time in fear of, or indeed receiving a beating for being gay, what William Ray Costello is doing is intimidating.

[Bungalow Benchly]

Tim, I will assume that those who have spent their time fighting to have their voices heard will not be as quick as you think to limit someone else's right to have his voice heard. Of course, people will be offended, and of course it will make people angry, but if you silence Mr. Costello's voice because you don't like what he's saying, how soon before you silence a gay person's voice because you don't like him proclaiming his love for another man?