2nd Circuit Upholds Dismissal of Street Preacher's Challenge To Noise Ordinance

In Costello v. City of Burlington, (2d Cir., Feb. 14, 2011), the U.S. 2nd Circuit Court of Appeals upheld, as applied, Burlington, Vermont's noise ordinance that was invoked by a police officer to issue a written warning to plaintiff, a street preacher, who was preaching in a loud voice outside places of business on a pedestrian mall.  In an opinion by Chief Judge Jacobs, most of which was concurred in by Judge Calabresi, the court concluded that the ordinance was a content neutral time, place and manner regulation in a public forum. Judge Pooler concurred only in the result, relying instead on the doctrine of qualified immunity to affirm dismissal of plaintiff's complaint. She believed that the case was closer on the merits since prior case law relied upon by the majority all dealt with amplified sound, not the loud unamplified speech that was present in this case. She pointed out that "street preaching ... has a long history in this country."