Christian Evangelist Sues Over Noise Violation

The City of Ithaca’s noise ordinance, which has recently been a source of tension between students living in Collegetown and the Ithaca Police Department, is being challenged for its constitutionality in federal court.
Syracuse resident James Deferio, a traveling Christian evangelist, filed a lawsuit against Ithaca last week, claiming that the city’s noise ordinance violated his First Amendment right to free speech and his Fourteenth Amendment right to due process.
Deferio alleged that while he was preaching his message on the Ithaca Commons in August, an Ithaca Police officer approached him and “explained that Deferio would have to lower his voice or stop speaking, because his voice could be heard 25 feet away,” which violates a City noise ordinance.
Deferio asserted in his lawsuit that although he tried to comply with the police officer’s request, he had to raise his voice in order to reach another individual on the Commons. At that point, Deferio said that another police officer approached him and warned him that he was in violation of the noise ordinance. He then stopped preaching and left the Commons area.
Deferio claimed in his lawsuit that the Ithaca noise ordinance is overbroad, is not narrowly tailored to achieve any legitimate governmental purpose, engages in content and viewpoint discrimination and has a chilling effect on free speech. He also claims that the vagueness of the ordinance causes it to be enforced in an arbitrary and discriminatory manner.
According to City Attorney Dan Hoffman ’72, law ’93, the noise ordinance, as written, is a constitutionally-permissible restriction on the time, place and manner of speech.
“We have no intention of violating someone’s right to free speech,” he said, “[But] we ask that people who are using the Commons be respectful of the rights and sensitivity of others.”
Another one of Deferio’s arguments is that a 2006 court ruling declared a similar application of the noise ordinance unconstitutional. In that case, another evangelist, Kevin Deegan, sued Ithaca in 1999 after police threatened him with arrest for violating the noise ordinance while he was preaching loudly on the Commons. Deegan won the case against Ithaca, with the Second Circuit Court of Appeals ruling that the City’s enforcement of the ordinance with the 25-foot rule violated Deegan’s First Amendment rights and did not provide him with fair notice of the law.
In spite of that ruling, it is unclear how, if at all, the City of Ithaca, changed the way it enforced the ordinance.
Hoffman said he was did not know if there were any changes made in how the police enforces the ordinance as a result of the lawsuit.
“There was no change in the wording of the ordinance,” Hoffman said. “Certainly the police department was made aware of the [2006] court ruling.”
Acting Ithaca Police Chief Ed Vallely was unavailable for comment. Deferio’s lawsuit also names Vallely and several individual police officers as defendants.
Deferio stated in his lawsuit that after his initial encounter with the police, he returned to the commons four days later with his friend Deegan. He said that when the police again tried to stop him from preaching loudly — with noise traveling beyond 25 feet away from him — he and Deegan argued to the police that Deegan’s 2006 case permitted them to preach loudly on the Commons.
The police officers rejected this argument and issued both Deferio and Deegan a warning for violating the noise ordinance, according to the lawsuit.
“Despite the binding opinion of Court of Appeals for the Second Circuit … Ithaca has refused to repeal or amend its unconstitutional ordinances so as to discontinue application of the 25-foot noise rule,” Defiero’s lawsuit states. “The continued application of the 25-foot noise rule reflects a willful and evil intent to violate constitutional rights.”
Hoffman said that he will be looking into the specific circumstances surrounding this case and the city will likely respond to the lawsuit through legal counsel provided by its insurance carrier.
Any court rulings regarding the city’s noise ordinance in Deferio’s case could potentially have implications for Cornell students living in Collegetown. The noise ordinance, which was first adopted in 1990 and amended in 2004, has been a controversial issue for Collegetown residents. At the beginning of this academic year, a spike in the number of noise violations compared to past years led to increased hostility between students and police.
Prof. Robert Vanderlan, history, who did not have any knowledge of the case aside from press accounts, said that while there are protections for noise ordinances in general, the Supreme Court has not had patience in protecting people from annoying speech.
“It seems like the noise ordinance as written is overly broad and overly restrictive, especially for a place that is a clear public space like the Commons,” he said. “I’ve been on the Commons and heard people speaking loudly on the Commons, so I also wonder if it’s been selectively enforced.”
Deferio is being represented by the Alliance Defense Fund, a conservative organization that seeks to defend “the right to hear and speak the truth through strategy, training, funding and litigation” according to its website. The ADF also represented Deegan in his case.
“Christians shouldn’t be penalized for expressing their beliefs, especially when a court has expressly upheld their right to do so, as is the case here,” ADF Senior Counsel Nate Kellum said in a press release.
Hoffman commented on the impact of the ADF’s involvement in the case.
“I thought it was ironic that the plaintiff in the former case got involved in this matter,” he said. “In the former case the city, through its insurer, had to pay over $100,000. It does make one wonder what the connections are here and what the motives are.”
The ADF did not respond to a request for comment.