On Friday, a federal judge tossed Costello's claim against Burlington police, ruling that Costello (pictured) has no right to shout the Gospel at the top of his lungs on the Church Street Marketplace. Costello, a born again Christian from Milton, sued Burlington in 2007 after police threatened to ticket him for shouting Bible verses on the pedestrian mall and disturbing merchants and outdoor diners.
Costello preaches with a big, graphic sign depicting an aborted fetus. His posters have anti-abortion and anti-gay slogans, such as "No Fags in Heaven" and "Fags Burn in Hell." He sued Burlington police without an attorney's help following an altercation on June 30, 2007 in which police told him to preach more quietly or risk getting a $200 noise fine.
Background story here.
Costello, who notes the Bible commands him to "lift up his voice like a trumpet," argued his preaching was protected under free speech — no matter the decibel level. U.S. District Judge J. Garva Murtha disagreed.
"Nothing in the record suggests that it is 'usual or customary' on Church Street for a citizen to suddenly raise his voice and begin preaching such that he can be heard over a football field away," Murtha wrote in the 23-page ruling. "On special occasions, Church Street is host to events that are loud by nature. However, these events are coordinate with City officials, issued permits, and required to adhere to the limitations set forth in those permits."
Reached at his home on Monday, Costello vowed to fight on.
"Looks like I'm going ... to the Court of Appeals," Costello said. "No way they could suppress my speech."
The legal case Costello relied on in his civil lawsuit, Deegan v. City of Ithica, bears striking similarities to his own: In Deegan, a sidewalk evangelist preaching on a pedestrian mall in Ithica was ordered to quiet down by city police after a store employee complained about his volume.
In Costello's case, Burlington Police Sgt. John Lewis ordered Costello to quiet down after an employee from Lippa's Jewelers, at Church and College streets, called the cops to complain. Both men sued in federal courts claiming free speech violations.
For Judge Murtha, that's where the similarities ended. Unlike the Deegan case, in which the preacher was heard by police a mere 25 feet away, Sgt. Lewis heard Costello shouting 350 feet away, about the length of a football field.
Church Street was quiet and "tranquil" on the Saturday morning the preaching breach occurred, the judge noted, with the outdoor lunch and shopping crowd beginning to arrive on the brick-lined promenade.
In sometimes rambling court papers, Costello argued that Church Street hosts numerous noisy events, including a Zombie Walk and spontaneous political rallies — and that his preaching was no more disruptive than those. That's true, but Murtha noted that most noisy events are "permitted and sanctioned by the City on specific occasions, and these are expressly exempt from the noise ordinance." At least one noisy Church Street event — a big pillow fight — was not permitted by city hall.
Costello contended he has the right to preach in Vermont "like in England or Europe, whether it be the women singing 'who will [buy] my sweet red roses,' to the peddler selling his wares [shouting] out 'pots and pans I have on hand ... to the policeman [clanging] his bell proclaiming 'all is well.'"
The judge found Costello's Euro street scene argument "unavailing."
"While Church Street has kiosks on the street," Murtha wrote, "the record does not find their vendors market their wares by shouting."
Judge Murtha had previously thrown out Costello's claim, but the street preacher appealed it to the U.S. Second Circuit Court of Appeals, which send it back to Vermont to determine the "normal" noise level on Church Street. Costello would have to appeal again to the Second Circuit and it's not clear what might become of the case if he does.
It's hard not to wonder whether Costello would have escaped police notice had he lowered his voice slightly. Costello argues the point of sidewalk preaching is to be heard — and the best way to do that is to speak loudly. Noise ordinances can have a chilling effect on speech, Costello argues, and religious speech, in particular, deserves special protections, he says.
Curiously too, the employee that called police to complain about Costello back in 2007 wasn't as offended by the noise as she was by the visuals. Lippa's store manager Tammy Foster was disturbed by what she called Costello's "very graphic, very disgusting sign."
"That would be like publicly screening an R-rate movie," Foster told Seven Days in December.
One final (curious) note: A Google search of Costello's name turned up a blog post by former Seven Days political columnist Peter Freyne. Turns out, Freyne encountered Costello on Church Street in May 2007, two months before Costello got busted, preaching with his aborted-fetus sign. When Freyne asked him if the cops ever hassled him, Costello shook his head 'no' and said: "First Amendment."
Photo by Matthew Thorsen