On The Front Lines
Victory: Affirming Rights of Christian Street Preacher, N.J. Borough Agrees to Amend Ordinance Prohibiting Sounds that ‘Annoy’ or ‘Disturb’
MANASQUAN, N.J. — The Borough of Manasquan, N.J., has agreed to amend a noise ordinance prohibiting sounds that “annoy” or “disturb” others and pay damages and attorneys’ fees to Christian street preacher Ken Fleck. The city’s actions come in response to a federal lawsuit filed by attorneys for The Rutherford Institute on behalf of Fleck, who was cited for violating the noise ordinance by preaching with the aid of a small amplification device on a public sidewalk in the Borough. The charges against Fleck were dismissed in court because the city could not prove he had created a disturbance, and the Borough is now in the process of re-writing the noise ordinance.
“This is a welcome victory in light of recent attempts by local and state governments, as well as federal agencies, to unconstitutionally curb all forms of speech, religious or otherwise,” said John W. Whitehead, president of the Rutherford Institute. “Whether you’re talking about a noise ordinance or a so-called free speech zone, the message from government officials is the same—there is no longer any such thing as unfettered free speech in America today. Fortunately, the court in this instance reminded government officials in Manasquan about the First Amendment.”
On January 7, 2012, Ken Fleck was preaching on a public sidewalk in Manasquan, New Jersey, while using a small amplification device when a police officer approached him. The officer informed Fleck that he was violating the city’s noise ordinance, which prohibits any sound that is “loud, unnecessary or unusual... which either annoys, disturbs, or endangers” others. The officer then issued Fleck a summons to appear in court for violating the Borough of Manasquan’s noise ordinance and threatened him with arrest for disorderly conduct if he continued to preach. Fleck pleaded not guilty at the court hearing on January 18. At the subsequent trial on March 21, the court dismissed the charge because the Borough of Manasquan did not produce evidence that Fleck had disturbed others with his preaching. On May 4, Rutherford Institute attorneys filed suit in the U.S. District Court for New Jersey on Fleck’s behalf against the Borough of Manasquan, arguing that the noise ordinance used to charge Fleck is unconstitutional. Specifically, the Institute argued that the ordinance unlawfully restricts, restrains and inhibits a substantial amount of protected First Amendment activity in areas that are open to the public. According to the complaint, the ordinance also lacks objective standards as to what constitutes noise, including speech that “annoys” or “disturbs” others, leaving officials to make their own subjective determinations. Institute attorneys also charged that the ordinance empowers the Mayor and City Council to exempt certain speech activities as they deem appropriate, resulting in the creation of differing classes of speakers. Given that the ordinance makes it unclear which kinds of activities will be permitted and which will be prohibited, Institute attorneys insisted that its vagueness and disparate treatment of individuals engaging in expressive activities constitute a violation of the Fourteenth Amendment’s Equal Protection Clause. In addition to agreeing to amend the city’s noise ordinance, government officials have also assured that in the future their police officers will be more attuned to respecting individuals’ free speech rights.
Affiliate attorney F. Michael Daily, Jr., assisted The Rutherford Institute with Fleck’s defense.
