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. ***
This article appears in Feb 16-22, 2011.
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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 conductA 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.)
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.
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.
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?
JVT, Why do you assume that Mr. Costello is of the right wing? That’s a bit prejudiced don’t you think?
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.
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.
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.
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.
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.