ITHACA — For the second time in recent history, the Ithaca Commons, the city's noise ordinance and free speech have become issues of litigation.
In a lawsuit filed this week, James Deferio of Syracuse is alleging the city violated his right to free speech in its enforcement of its noise ordinance in August. On two occasions that month, the lawsuit claims, Ithaca Police officers warned Deferio that his preaching was violating the noise ordinance and that because of Ithaca Police actions, Deferio “refrained from engaging in any further expressive activity in the Ithaca Commons area for fear of citation and arrest.”
The lawsuit said that Deferio is a “traveling evangelist for his religious beliefs.” Among its many allegations, the lawsuit claims a ruling and court order in an earlier lawsuit involving Kevin Deegan made the noise ordinance unconstitutional. The court papers refer to Deegan, of West Seneca, as “the preacher.”
“These precise ordinances and policy of City of Ithaca have already been declared unconstitutional by the United States Court of Appeals for the second circuit and enjoined by this court in Deegan v. City of Ithaca, et al,” the lawsuit reads. “The continued use and enforcement of the unconstitutional 25-foot ban — despite this Court's order and injunction — prevents James Deferio from communicating his religious beliefs in Ithaca, N.Y.,” the lawsuit says.
Deegan's case began in 1999, according to a 2006 city press release, when officers approached him on The Commons and told him his “loud preaching” violated the noise ordinance. Deegan stopped preaching but sued the city, the statement explains. While a federal district court found in favor of the city, the decision was later overturned by the court of appeals.
The court held that The Commons is a public forum; that regulations, as applied to prohibit any sound that could be heard 25 feet from its source, violated free speech; and that the regulations failed to provide Deegan with fair notice of conduct they proscribed, and thus violated his due process rights. The court did not find that regulations were enforced selectively against Deegan, so as to violate his equal protection rights.
The court also ordered Ithaca not to enforce the noise ordinance “so as to preclude legally protected free speech that can be heard at a distance of twenty-five feet on public streets sidewalks or ways in the city of Ithaca.”
Deegan was awarded his legal fees, which came to about $100,000, and a dollar in damages, according to Ithaca City Attorney Dan Hoffman. In a 2006 statement, the city asserted that “the court did not overturn either the ordinance or the Commons rules, or require any specific changes in them, only that they be correctly enforced.”
The court found that there was no evidence that 12 factors the ordinance lists to evaluate noise — including the noise's intensity, time of day the noise occurs and if there is any background noise — “were used in the response to Mr. Deegan's un-amplified preaching,” the city's press release went on to say.
Deegan was with Deferio during his second encounter with police in August, according to the lawsuit. Officers again told them they were breaking the 25-foot noise ordinance. Deegan produced the court order, but the officers said it was irrelevant, the lawsuit alleges.
On Thursday Hoffman said he hadn't seen Deferio's complaint but reiterated the city's position that the appeals' court decision spoke directly to the way the city enforced the ordinance and not the ordinance itself.
“There is no court order that found the city of Ithaca's noise ordinance as written was unconstitutional,” Hoffman said. Nonetheless, they will research the Deferio case, ascertain what happened and respond appropriately, he added.
In addition to damages and legal fees for Deferio, the lawsuit asks the court to declare the noise ordinance unconstitutional and that it violates Deferio's first and 14th amendment rights.
While he declined to comment on the lawsuit when reached by phone on Thursday, Deferio's attorney Robert E. Genant said the lawsuit was filed by an organization called the Alliance Defense Fund on Deferio's behalf, and that the organization had retained him to represent Deferio.
He said he would be glad to comment on the lawsuit this morning.
On its Web site, ADF described itself as “a legal alliance of Christian attorneys and like-minded organizations defending the right of people to freely live out their faith.”
