This is a response letter from GIBBS & CRAZE, Attorneys and Counselors at Law, (The Christian Legal Association) to a problem we were having....
April 24, 1998
Mr. Ron Knudson
10607 Devonshire Circle
Penn Valley, California 95946
Dear Mr. Knudson:
This letter is in response to questions you recently posed to the Christian Law Association regarding your constitutional right to distribute free literature and preach on public streets. This question arose when, after many years of peacefully conducting similar activities, a police officer recently told you that you had to stop preaching because two complaints had been received.
The following is our Legal Opinion about this issue as well as some guidelines we have prepared for our CLA supporters and friends. We suggest that you present courtesy copies of this letter to your local Mayor, City Attorney and Police Chief to inform them of your activities and of the constitutional basis on which you are conducting these activities. Hopefully, this will resolve the difficulty you recently encountered and prevent any similar difficulties in the future. You do have a legal right to bring court action against individual police officers who interfere with your exercise of constitutional rights of free speech in public forums such as city streets and parks. We feel it is better, however, for all concerned to avoid formal legal action in such circumstances.
We suggest that, in addition to sharing this letter with the appropriate city officials, you carry a copy with you on the street in the event you are approached again by law enforcement personnel. We have found that, normally, when city officials and police understand their obligation to protect the free speech rights of citizens, there is no further problem.
Legal Opinion Memorandum
We understand that you were recently threatened with arrest for disturbing the peace while exercising your constitutional rights of free speech on a public street that is a traditional public forum. We understand that police officers approached you and told you that because your preaching was "offensive" you had to stop or you would be arrested.
Public streets and parks are considered to be "traditional public forums." This is the classic place where citizens have always been permitted to share their beliefs and ideas with one another either verbally or through the distribution of literature. In the case of Hague v. C.I.O., 307 U.S. 496 (1939), the United States Supreme Court held that citizens have a "guaranteed access" to streets, parks, and other "traditional public forum." The privilege to use the streets and parks for communication of views may be regulated in the best interests of all, but it must not, under the guise of regulation, be abridged or denied. Mere inconvenience to the government will not outweigh free speech interests.
The "traditional public forum" is the most protected place for Christian witnessing,"street preaching," and literature distribution. All citizens have an absolute right to share their faith in the "traditional public forum" of streets and parks. This absolute right is subject only to limited controls in the interest of public safety and order--i.e. two parades cannot march down the same street at the same time so parade permits, if constitutionally granted, are permissible.
It is important to note that controls for public safety and order may not be imposed for reasons such as potential littering, potential offense to other citizens, or attempts to silence some citizens while continuing to permit others to speak in the forum. Amplification may be regulated by ordinances setting noise decibel levels under Kovacs v. Cooper, 335 U.S. 77 (1949), but I understand that you were not using amplification when you were approached by the police.
In the case of Schneider v. State, 308 U.S. 147 (1939), the United States Supreme Court did not permit cities to forbid leaflet distribution in order to prevent littering. The objective of keeping the streets clean does not outweigh the right to distribute literature in public.
Christians are free to witness and distribute Gospel tracts in public streets and parks. Christians are also free to preach, sing, or present dramatizations which might collect a crowd as long as that crowd will not block pedestrian or vehicular traffic. Permits may sometimes be required for formal crowd generating activities but they must be available on a neutral basis to all who request them and must allow real communication to take place. In the case of Freedman v. Maryland, 380 U.S. 51 (1965), the United States Supreme Court held that public officials may not be given overly broad discretion to grant or deny permits or licenses.
First Amendment law also does not allow city police or officials to interfere with a citizen's right of freedom of speech simply because that speech might offend a listener. These cases are particularly important to your situation. In the case of Cantwell v. Connecticut, 310 U.S. 296 (1940), the United States Supreme Court held that speech may not be prohibited merely because it offends some listeners.
Several other Supreme Court cases have also dealt with this issue of giving offense to other citizens, which is sometimes called the "Heckler's Veto" and is not permitted. In the case of Cox v. Louisiana, 379 U.S. 536 (1965), the United States Supreme Court held that hecklers may not be allowed to veto a speaker's right of free speech. Police must control a crowd rather than arrest the speaker in order to maintain order. A similar ruling that offensiveness is not a reason to limit free speech rights was made by the Supreme Court in the case of Cohen v. California, 403 U.S. 15 (1971).
In America, citizens, police and city officials are still held to the legal standard that can be restated in the folk maxim: I may not agree with what you say but I will defend to the death your right to say it. That is still the law in these United States. It is also true that I may be offended by what you say but I must protect your constitutional right to say it. Witnessing, "street preaching," and distribution of free literature are constitutionally protected activities because they are ways citizens have always exercised their rights of free speech.
Practical Guidelines for Street Preachers:
1 . Do not disrupt the traffic flow. Stand near a building or other stationary object such as a lamp post.
2 . Do not interfere with ingress or egress to buildings.
3 . Maintain a reasonable noise level for the situation (different in front of a high school or hospital than on a public street where other may call or shout to friends or otherwise maintain a higher noise level with the unamplified voice).
4 Do not use words that would provoke a riot or other "clear and present danger" to public safety, however, you may not be prevented from speaking merely because others are offended by your message.
5. Identify yourself to law enforcement officials so that they will know why you are on the street.
6 . If hassled by police or other citizens, be polite and explain your rights calmly rather than cause a confrontation.
7 . Consider picking up any literature passersby may drop near you in the street. While not required, this may save you money by being able to reuse the material.
8. Don't force people to take literature if they obviously do not want it.
9 . If you engage someone in conversation, move to the side of the street in order not to block traffic.
10. Work in teams as much as possible to ensure safety and to vouch for each other if confronted by police. This is particularly important in "bad" parts of town.
11. Identify yourself to authorities ahead of time so they know what you are doing. You could carry a letter from a pastor or evangelist vouching for your legitimate activities. You might also carry along a list of names of court cases that give you the right to do what you are doing.
12. If you see a companion being arrested, do not interfere with the arrest. Observe from the sidelines and then call a local attorney or pastor for help.
13. Do not resist if arrested yourself. Call our office or a local attorney from the police station.
Key Legal Cases
Hague v. C.I.O., 307 U.S. 496 (1939).
The United States Supreme Court held that citizens have a "guaranteed access" to streets, parks, and other "traditional public forum." The privilege to use the streets and parks for communication of views may be regulated in the best interests of all, but it must not, under the guise of regulation, be abridged or denied. Mere inconvenience to the government will not outweigh free speech interests. The government must use the least restrictive means of achieving legitimate, content neutral objectives.
Ward v. Rock Against Racism, 491 U.S. 781 (1989).
Time, place and manner regulations must be narrowly tailored and must not be substantially broader than necessary to achieve a significant government interest.
Schneider v. State, 308 U.S. 147 (1939).
The United States Supreme Court did not allow cities to completely forbid leaflet distribution in order to prevent littering. The objective of keeping the streets clean does not outweigh the right to distribute literature in public.
Cox v. New Hampshire, 312 U.S. 569 (1941).
The United States Supreme Court permitted a city to require a permit for parades as a reasonable means of maintaining public order.
Freedman v. Maryland, 380 U.S. 51 (1965).
Public officials may not be given overly broad discretion to grant or deny permits or licenses for free speech.
Cantwell v. Connecticut, 310 U.S. 296 (1940).
Speech may not be prohibited merely because it offends some listeners.
Kunz v. New York, 340 U.S. 290 (1951).
The United States Supreme Court did not allow a permit to include anvrestrictions on a speaker's right of free expression. Permits may not be used as a prior restraint on free speech activities. Inappropriate or illegal activities may only be punished after they have occurred.
Forsyth County v. The Nationalist Movement, 112 S.Ct. 2395 (1992).
A city may not consider the listeners' reaction to a speaker when permitting free speech activities.
Cox v. Louisiana, 379 U.S. 536 (1965).
Hecklers may not be allowed to veto a speaker's right of free speech. Police must control a crowd rather than arrest the speaker in order to maintain order. Regulations may be imposed on free speech to control traffic flow.
Gregory v. City of Chicago, 394 U.S. 111 (1969).
Peaceful marching, chanting, and singing is protected by the First Amendment.
Grayned v. Rockford, 408 U.S. 104 (1972).
Free speech expression may be regulated for noise content in appropriate places such as hospitals or schools while classes are in session. The general test is to ask whether the expressive activity is basically incompatible with the normal activities of a particular place at a particular time. Unamplified speech is permissible for "street preachers" on public streets.
I hope this information will be helpful. Please contact us if we can assist you in any other way.
Gibbs & Craze, P.A.
Barbara J. Weller
Admitted in Florida