Firm Foundation

Benjamin Franklin is believed to have authored this gem:

“Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.”

Yesterday in Salem, Mass., evangelist Michael Marcavage’s liberty was sacrificed to the specter of alleged safety: he was found guilty of disorderly conduct.  See news reports here and here.

The Foundation was glad to stand by Michael yesterday in Salem and we will continue to pursue justice on appeal in this case.  (At left: Michael Marcavage (L) and I in the Salem District Court before trial began.)

As readers here remember, Michael was arrested last Halloween evening as he preached to the throngs of party-goers on the streets of Salem, Mass.  Despite the fact that the noise ordinance permits him to use amplification (a megaphone) until 10:00 p.m., the Salem police decided to make their own rule of an 8:00 p.m. deadline—and conveniently enforce it against Michael and his group Repent America even while other groups and persons used amplification on the noisy streets of Salem. After his arrest Michael was charged with violating the noise ordinance (a charge later dropped) and disorderly conduct.

At trial yesterday, the prosecution tried to paint Michael and Repent America as aggressive, in-your-face preachers, but our video evidence and witnesses demonstrated that Michael and his fellow evangelists always remain stationary as they calmly preach, or passively offer literature to passersby.  Even though the prosecution did not focus on Michael’s interaction with the police officer grabbing at his megaphone, the judge decided that that was disorderly conduct.  And he justified the police’s interference—even though contrary to the noise ordinance—by saying they were just trying to keep the rowdy and liquored crowd from getting out of hand.  Never mind the fact that there was never any violence or threats of violence from or even toward Repent America that evening.  There was nothing more than a free exchange of ideas and words…until the Salem police decided to put a stop to it.  Salem on Halloween night, the judge explained, is a unique place—and that apparently excuses their violation of Michael’s right to preach.

We were obviously disappointed with the verdict, but are now considering our options for appeal.  First, Michael’s behavior throughout the entire evening was neither disorderly nor illegal under Massachusetts law.  Second, courts have repeatedly held that police cannot suppress someone’s speech because that speech is instigating vehement reactions or opposition, or as in this case could be in the future.  Such a “heckler’s veto” does not give the police the right to stop the speech.  As we’ve said before, they should have been protecting his right to speak, not shutting him down.

Hopefully cooler heads on the appellate courts will agree. Essential liberty should never be undermined for imagined fear of crowd reactions—yes, even in Witch City, Mass. on Halloween night.