US court tosses anti-abortion protester’s arrest at Liberty Bell, cites free speech

US court tosses protester’s arrest at Liberty Bell

PHILADELPHIA — An anti-abortion protester arrested in 2007 had a First Amendment right to demonstrate on a sidewalk near the entrance the building that houses the Liberty Bell, a federal appeals court ruled Wednesday.

The decision overturns lower-court rulings that upheld the arrest of Christian evangelical leader Michael Marcavage. Marcavage, who lives in suburban Lansdowne, had been sentenced to a year’s probation for refusing a National Park Service order to move to a nearby designated demonstration area.

The appeals court tossed the two charges on free-speech and procedural grounds. The three-judge panel said Marcavage caused no more of a disturbance than other people near the Liberty Bell entrance, including a cancer-survivors group and the drivers of horse-drawn carriages hawking their services.

Marcavage founded a group, Repent America, that opposes abortion, homosexuality and the teaching of evolution.

He has been arrested repeatedly during protests up and down the East Coast. He successfully challenged a 2004 arrest for picketing at a Philadelphia street festival for gays and lesbians, but a Massachusetts court last year upheld a disorderly conduct conviction based on his refusal to stop using a megaphone at Salem’s famed Halloween celebration.

At his trial in the Liberty Bell case, the government failed to prove Marcavage physically blocked anyone from the tourist attraction. Instead, park service rangers voiced concern for tourists seemingly distressed by Marcavage’s graphic speech about abortion.

The judges lauded the rangers’ desire to maintain order on a busy Saturday, but they found the law “tips” in Marcavage’s favor.

“The government in effect ratified what it perceived as listener hostility to Marcavage’s speech when it silenced that speech. That act, coupled with its impetus, constitutes a content-based restriction on speech,” Judge Michael Fisher wrote for the panel.

Marcavage will now pursue his related civil suit, which seeks damages and an order blocking the park service from restricting other demonstrators, his lawyer said.

“It happens all the time. If they don’t like what you’re saying, they order you to leave,” said lawyer C. Scott Shields.

Federal prosecutors in Philadelphia were reviewing the opinion before deciding whether to appeal, according to spokeswoman Patty Hartman.