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.
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. ***