7th-graders hear free-speech case

• By ALLEN M. JOHNSON JR.
• Advocate New Orleans bureau
• Published: Nov 5, 2008 - Page: 5B - UPDATED: 12:05 a.m.

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NEW ORLEANS — A federal appeals court Tuesday heard arguments over whether a Zachary ordinance violated a street preacher’s right to free speech or his message to customers of an alcohol-serving restaurant was “offensive” enough to justify arrest.

A visiting class of seventh-grade children, heard lawyers for both sides, argue the case before a three-judge panel of the U.S. 5th Circuit Court of Appeals.

Looking over his shoulder at the kids, Kevin Theriot, an attorney for the Christian-oriented Alliance Defense Fund, took pains to repeatedly abbreviate a swear word (“G.D.”) as he referred to other freedom of speech cases during arguments on behalf of John T. Netherland, of Baker.

The street preacher’s case joined two traditional arch-rivals — the American Civil Liberties Union and the Christian-oriented Alliance — against the city of Zachary and the Louisiana Municipal Association.

The city and the LMA, representing 300 local governments statewide, are appealing a lower court ruling in the case by U.S. District Judge James Brady of the federal Middle District Court in Baton Rouge. Brady’s ruling bans the future enforcement of a disturbing-the peace-ordinance that Zachary police used to silence Netherland.

The ACLU and the Alliance are asking the 5th Circuit to uphold Brady’s ban.

The outcome of the case may be bigger than Zachary.

“(This) case is a matter of importance to municipalities — not just in Zachary — but across the state,” LMA attorney Lana Crump argued.

The Zachary ordinance is a “verbatim duplication” of a “constitutionally sound” Louisiana law that is used by local governments statewide, LMA attorneys wrote in appellate filings.

The case stems from Netherland’s suit against the city, after Zachary police Lt. Troy Eubanks threatened to arrest the street preacher on Nov. 18, 2006. Eubanks warned Netherland he was disturbing the peace by shouting at patrons outside of Sidelines, a restaurant that serves alcohol.

Pictures of the area — submitted in Netherland’s original suit — indicated he stood on a grassy highway divider, some 75 to 100 feet from Sidelines. He did not use a bullhorn or other amplifier, filings show.

On Tuesday, appellate judges expressed skepticism over the city’s claims that the median is “not a public forum” and that Netherland was deliberately offending adults, women and children as they entered Sidelines.

“He was talking about the Bible,” said Judge Thomas Morrow, who was nominated to the court by President Jimmy Carter in 1979. 
James Hilburn, a lawyer for Zachary, disagreed.