Monica Yant Kinney: Free-speech ruling won on some sacred grounds

Michael Marcavage (right), listening to his attorney, C. Scott Shields, after court proceedings in Philadelphia in January 2005.
Michael Marcavage (right), listening to his attorney, C. Scott Shields, after court proceedings in Philadelphia in January 2005.
Posted: June 27, 2010

That I should have Michael Marcavage to thank for preserving my constitutional right to gripe on city sidewalks strikes me as slightly hilarious. But I am appreciative, even if he has condemned me to hell.

Marcavage, 30, is an evangelical P.T. Barnum, a sin-slaying showman who says Satan "has invaded our communities" via America's acceptance of abortion, homosexuality, and TV's South Park.

The Lansdowne preacher eschews a cassock for T-shirts and baseball caps. He wields a bullhorn and fetus photos and records each graphic spectacle for YouTube and www.repentamerica.com - where the like-minded are urged to "prayerfully consider" donating and the unsaved are sentenced to smolder in a "lake of fire."

Marcavage's ever-present video camera came in handy in October 2007 when rangers at Independence National Historical Park deemed his ministering too menacing for tourists' tender ears.

The park rangers told Marcavage to walk from his symbolic spot on Sixth Street, but he balked. So they hauled him away.

Beyond a People's Plaza

My job doesn't get much easier than when the U.S. government silences a citizen speaking his mind in the shadow of the Liberty Bell and Independence Hall.

Marcavage's $125 misdemeanor snowballed into a federal case. I met him in early 2008 in the courthouse at Sixth and Market Streets, one block from where the Park Service was christening a $268,000 "People's Plaza."

We both winced at the taxpayer-funded folly. Why would any activist worth his colored ribbon ever agree to be corralled into a lame free-speech zone?

Defying both democracy and logic, Marcavage was convicted - first by a magistrate judge and then in U.S. District Court.

Two years later, a panel of judges on the U.S. Court of Appeals for the Third Circuit saw the light. Their 52-page ruling sternly reminds would-be government guardians that sidewalks are public places "which by long tradition . . . have been devoted to assembly and debate."

While they were at it, the judges admonished the park rangers for admitting they shut Marcavage up to appease out-of-towners shocked by his screeds.

"There is only one permissible view of the weight of the evidence," the court wrote. "The rangers' actions were motivated by the content of Marcavage's speech."

And that, even high school students know, is a constitutional no-no.

Jog and jab

Given his reputation, Marcavage is easily dismissed as a media-hungry troublemaker. But even the famously tolerant folks at the American Civil Liberties Union realized that his small sidewalk skirmish had the potential to upend society's right to rant.

"This could have been very big," lawyer Mary Catherine Roper said in explaining why the ACLU had filed an amicus brief in support of a man with such extreme beliefs.

Animal-rights activists opposed to the horse carriages around the park have experienced similar treatment, Roper told me. The Park Service had to stop squelching speech under the guise of sanitizing the historic experience for visitors.

"If I can jog on it," she said, "I can protest on it."

(Questions remain about the Park Service's requiring permits for every protester. Big crowds create security concerns, but Roper thinks small groups should be exempt: "There's no reason for the government to have prior notice of three people with signs, petitions, or pamphlets.")

Marcavage, still giddy from the court victory, invites fans and foes to witness his triumphant return to alarming the masses.

"I'll be back on July Fourth, preaching to people waiting in line to see the Liberty Bell," he declared, excitedly. "This is what freedom of speech is all about: Ideas that aren't popular need to be protected as much as those that are."


Reach me at myant@phillynews.com or 215-854-4670. Visit my Web page and connect on Facebook and Twitter at philly.com/kinney.

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