Specifically, it pointed out the conversation in which Lt. John Danielson of the Winchester Police Department ordered Marcavage to stop using his equipment, which he earlier had been told was permitted.

Danielson told Marcavage: "That gentleman [pointing at a third party] just said he's not comfortable with what's going on. That's a violation of our city code."

He continued, "You can talk all you want, you just can't use this system."

"Upon being ordered by law enforcement to cease using amplification to express their sincerely held religious beliefs on the public streets and sidewalks of Winchester, plaintiffs were faced with the choice of either abandoning the effective communication of their message to passersby or being cited," the brief explains. "It is undisputed that if plaintiffs had violated the direct order of defendant Danielson to turn off the amplification device, they could have been arrested."

John W. Whitehead, president of the Rutherford Institute, noted the Winchester ordinance makes "unnecessary noise" unlawful.

"What this means is that law enforcement officers can pick and choose what kind of verbal expression to allow and what to prohibit," he said. "If this kind of law is valid, then the First Amendment simply has no meaning."

The ordinance makes it illegal to make "excessive, unnecessary, or unusually loud noise, or any noise which unreasonably annoys, disturbs, injures or endangers the comfort, health, safety, welfare, or environment of others."

In the federal court suit, Rutherford Institute attorneys asked the court to strike down the city's ordinance as a violation of the First and Fourteenth Amendments of the U.S. Constitution. Institute attorneys also pointed out that the Virginia Supreme Court struck down a Virginia Beach noise ordinance in 2009 that was similar to the Winchester law, in Tanner v. City of Virginia Beach. In March this year, the federal court heard oral arguments on motions by both parties to dismiss the case, but the judge has yet to rule on the motions.

Just weeks ago, as part of the case, a Winchester police officer also admitted under oath that he was ordered to go undercover to monitor street preachers. According to the officer's statement, he used a recording device to film the preachers as they expressed their sincerely held religious beliefs during the 2010 Apple Blossom Festival. Winchester city officials have repeatedly refused to resolve the matter out of court.

The request for a summary judgment explains that's the proper procedure where the record shows "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

Marcavage recently won a court dispute over his street preaching on public property outside the display of the Liberty Bell.

In Philadelphia, the 3rd U.S. Circuit Court of Appeals overturned the convictions for violating a demonstration "permit" and "interfering" with National Park Service operations at the popular tourist attraction.

Marcavage was taking part in a street-preaching event there in 2007 in which he advocated protecting the lives of the unborn.

The court said while some time and place speech restrictions are constitutional, they need to serve a "compelling interest," and the "government chose not to submit evidence."

"We hold that the government impermissibly infringed Marcavage's First Amendment right to free speech," the ruling said regarding the Philadelphia case.

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