Marcavage v. City of New York

Civil Rights

New York Law Journal


Judge Laura Taylor Swain

Marcavage and other members of Pennsylvania-based Repent America were preaching on a Manhattan street corner in April 2011. A New York police officer instructed them to stop using a sound amplifier because they lacked a permit required by a city law licensing such devices and restricting their use. The court granted the city summary judgment in plaintiffs' 42 USC §1983 action alleging violation of their First Amendment right to "free speech and free exercise activities" and seeking injunctive relief barring the city's enforcement of the subject ordinance. The law at issue was content-neutral because it was directed at regulating street congestion, and "potentially harmful secondary effects" of speech, not speech content. The permit requirement was narrowly tailored to address the city's significant interest in protecting the health and safety of its inhabitants from the potential dangers of amplifiers, including diversion of drivers' and pedestrians' attention increasing traffic hazards and causing injury. Alternate channels of communication were available. Plaintiffs could speak, in any regulated public area, without an amplifier. Also, they could, in certain situations, obtain an amplifier permit without applying five days in advance.

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