In United States v. Michael Marcavage , No. 09-3573 (3d Cir. June 16, 2010), the defendant and some 20 others demonstrated in an anti-abortion protest – with graphic signs and use of a bullhorn – in front of the entrance to Philadelphia’s Liberty Bell Center in Independence National Historical Park, where a long line of tourists were waiting to enter. Although Marcavage did not have a written permit as National Park Service regulations require, a park ranger stated that he would give the demonstrators a verbal permit, but they had to move away from the entrance to a nearby designated demonstration area. When Marcavage refused to move, park rangers arrested him for violating the terms of the permit and interfering with Park Service functions, both misdemeanors. A U.S. Magistrate Judge in the Eastern District of Pennsylvania found him guilty on both counts after a two-day trial, sentencing him to 12 months’ probation. On appeal to a U.S. District Court Judge, the conviction and sentence were affirmed.
The Third Circuit overturned both convictions. First, the Court vacated the conviction on the permit violation count because a verbal permit is invalid, and so there was nothing valid for Marcavage to violate. Second, as to the conviction on the interference with park functions count, the Court necessarily addressed Marcavage’s Free Speech defense. The Court rejected the Government’s arguments that the sidewalk near the Liberty Bell Center is a nonpublic forum, and that its restriction of Marcavage’s speech was content neutral. While the Court expressed some sympathy to the park rangers’ intent to protect captive tourists on line from being disturbed by the bullhorn and offended by graphic images, the Court noted that a fundamental Free Speech principle is that the Government "may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." The Court found that while the Government’s interests in restricting speech – "ensuring traffic flow and/or public safety, and regulating noise"– were legitimate, they were not sufficiently compelling to satisfy strict scrutiny. The Court noted that the demonstrators caused no more disturbance than others near the Liberty Bell entrance, including drivers of horse-drawn carriages, and that the Government did not prove that anyone was prevented from entering the park. Therefore, the Government "impermissibly infringed Marcavage’s First Amendment right to free speech."