Appeals court upholds conviction of religious protestor

Lisa Guerriero

An appeals court on Wednesday upheld the conviction of a religious protestor who claimed his rights were violated when Salem police arrested him for disorderly conduct on Halloween night in 2007.

Michael Marcavage, a Pennsylvania preacher with the group Repent America, was found guilty in Salem District Court in March 2008 and fined $200.

Marcavage had been addressing the crowds in downtown Salem that Halloween night using a bullhorn. Police said he was also waving a Bible “within inches” of peoples’ faces, accosting event-goers and raising his voice even louder than the noise of the crowd. An officer in the area told his supervisor he’d received complaints about Marcavage’s behavior.

Police said he refused to stop using the bullhorn after 8 p.m., which violates a city noise ordinance. When he continued to refuse an officer’s request to stop, he was arrested.

Ever since the 2008 conviction, Marcavage has been appealing the decision, arguing that there was insufficient evidence, that the confiscation of the bullhorn violated his constitutional rights and that he “received inadequate notice of the Commonwealth’s theory of the case.”

Justice David Mills’ findings compared the case to a similar one in 1999 in that both defendants’ behavior amounted to “tumultuous conduct.”

“Contrary to the defendant’s claims, we find nothing in the record to support the inference that the decision to curtail [Marcavage’s] use of the megaphone was in any way connected with the content of his speech,” Mills further wrote. “Indeed, as the defendant concedes, similar limits were imposed on at least one other nearby group.”

The court decision takes into consideration the thousands of people packing into Salem on Halloween night, and into the Town House Square area where Marcavage was demonstrating.

“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,” the decision says.

Marcavage’s attorney argued that Salem’s ordinances allow for use of megaphones until 10 p.m., but Mills wrote that, “The ordinance is irrelevant here. The supervising police officers had made a decision, in the interest of public safety and order, to curtail behavior they reasonably believed to threaten the safety of the public.”

Although street evangelists, including the Repent America group, have been present at every Halloween in recent years — and while some crowd members have said the proselytizing and protests are annoying — their actions have almost never led to arrests.

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