Appeals court upholds arrest and conviction of Christians preaching repentance from homosexual behavior
-- From "Court upholds conviction in Halloween preacher case" by Julie Manganis, Staff Writer, The Salem News 12/24/09
Michael Marcavage runs an organization called Repent America and has been visiting Salem every Halloween for the past six years to preach to revelers.
Police arrested Marcavage during the festivities two years ago after he disobeyed an order to stop using the megaphone and then got into a shoving match with officers.
Marcavage's conduct, Justice David Mills wrote, created the kind of hazardous or physically offensive condition affecting the public that the disorderly conduct law was intended to address.
Mills said that by disobeying police orders, Marcavage was engendering hostility toward police and disrespect for authority among the crowd, creating a dangerous situation for officers trying to deal with upwards of 100,000 people crowding into the city that night.
"While his underlying conduct, particularly dissemination of his religious message, may have enjoyed First Amendment protection, that protection did not entitle him to disregard police commands reasonably calculated at ensuring public safety amid potentially dangerous circumstances," Mills wrote. "Moreover, the police-imposed limits were content neutral, and no more restrictive than necessary to protect the public. The defendant's conviction, therefore, transgressed no constitutional limits, and was otherwise proper in all respects."
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From "Oral Arguments Before Appeals Court Of Massachusetts" Foundation for Moral Law 5/6/09
In legal briefs submitted in the case, Commonwealth v. Marcavage, No. 2008-P-1294, the Foundation argued that under the Salem city code Marcavage had a right to use a megaphone until 10:00 p.m., as other businesses and street performers were being allowed to do. The Salem Police Department's decision to shut him down and arrest him at 8:30 p.m. was completely unwarranted and a violation of Marcavage's constitutional rights to free speech, free exercise of religion, and equal protections of the laws.
Attorney [Ben] DuPré said, “It should not be up to the Salem Police Department to decide when the Constitution protects the rights to free speech and freedom of religion.”
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