CHARLOTTE — The leader of an anti-LGBT, anti-choice activist group said he will appeal the dismissal of his federal, civil rights lawsuit against the City of Charlotte.
On Jan. 8, U.S. District Court Judge Robert J. Conrad, Jr. dismissed Flip Benham’s suit against the city, saying the religious leader had “not put forth sufficient evidence” for his claims the city had violated his First Amendment rights to protest and assemble at Uptown’s Independence Square.
In 2006, Benham’s Operation Save America, an anti-gay street preaching and protest group based in Concord, N.C., filed for a public assembly permit for a Roe v. Wade Memorial they wanted to hold at the Square, located at the intersection of Trade and Tryon Sts. Permit official Emily Westbrook denied Benham’s request. According to court documents, Westbrook told Benham his event was a demonstration and that, as such, it would fall under the city’s picketing ordinance and no public assembly permit was required.
The pro-life event was held successfully that year. No arrests were made or citations issued, although police did issue two noise ordinance warnings.
At issue is the decibel level for sound systems under the city’s picketing and noise ordinances, Benham told qnotes.
“The sound ordinance says you cannot use a speaker system above 75 decibels, but the ambient sound out there [on Trade and Tryon] is 60 or 70 decibels alone,” he said. “The sound ordinance is totally ludicrous. You have a sound system but you can’t even use it. At 75 decibels we couldn’t hear anyone.”
Benham said his group filed for the public assembly permit — which is also given to community festivals — as a work-around to the restrictions imposed by the sound ordinance.
“We filed a festival permit because we know that with the festival permit you can have sound as loud as you want,” he said. “All sorts of things go on down there at Trade and Trying and the festival permit allows us free First Amendment rights while the sound ordinance does not.”
Senior City Attorney Bob Hagemann told qnotes the city’s ordinances do not violate any individual freedoms.
“When we drafted the [picketing] ordinance back in 2004 we did a lot of work on it and involved, among others, the [American Civil Liberties Union],” Hagemann said. “We are pretty confident that the ordinance, as written, is constitutional.”
Yet, Benham and others with Operation Save America disagree. Represented in part by the arch-conservative legal group Alliance Defense Fund, Benham claims the ordinances violate the First Amendment and city officials’ decisions regarding his event were different when compared to those made on events he says are similar to his pro-life memorial.
Pride Charlotte, the annual LGBT community festival presented by the Lesbian & Gay Community Center of Charlotte, was one of several events cited by Benham in his court filings. In 2008, then Pride co-chair Darryl Hall was required to testify during depositions in the case. Pride Charlotte has been annually targeted for protest by Operation Save America and other local anti-gay organizations. In 2006, Pride organizers were forced to move their events to private property because of Benham’s increasingly confrontational protests.
Pride Charlotte receives a festival, or public assembly, permit from the city and works with police and other officials to shut down some streets during the festival. Benham claimed the city’s decisions regarding Pride Charlotte proved the city was engaging in viewpoint discrimination, and argued Pride Charlotte was a “demonstration,” not a festival, because of the presence of political advocacy organizations at the event.
The U.S. District Court rejected Benham’s arguments. For each event Benham cited, including Pride Charlotte, Judge Conrad ruled his evidenced failed to establish any pattern of discrimination by the city against him or his organization.
Regarding Pride Charlotte, Conrad said the events were “not similar to [Benham’s] event in all relevant respects” and wrote, “Although expressive activity, such as political campaigning and advocacy for gay and lesbian issues, took place, there were also commercial activities, such as selling food, alcohol, and t-shirts.”
Benham said his appeal should be filed no later than next week, but City Attorney Hagemann believes Conrad’s dismissal of the suit is safe.
“We’re pretty confident that officials made the right decisions in all those cases,” he said. “The U.S. District Court agreed and there is nothing that has happened since then that would change this view. Courts can take an independent look at the case and if they do appeal we’d hope and be reasonably confident that the Fourth Circuit will uphold Judge Conrad’s decision.”
qnotes contacted Benham’s attorney, Frederick Nelson, via phone and email. Nelson did not return our requests for comment.
This article was originally published online Jan. 15 and appears in the Jan. 23-Feb. 5 print edition.