by David J. Rusin
American Thinker
May 1, 2011

Law enforcement scrutiny, detainment by police, and a court date to answer trumped-up charges: these are the consequences of preaching Christianity to Muslims not only throughout much of the Islamic world, but sometimes even in America as well.

The most infamous example occurred last June, when four missionaries from Acts 17 Apologetics were arrested and charged with breach of peace while they calmly discussed their faith with Muslims at the Arab International Festival in Dearborn, Michigan. Armed with self-recorded video showing that they had acted in a civil fashion, the Christians were vindicated by a jury several months later.

An important but virtually unnoticed Philadelphia case from 2010 bears striking similarities to the one in Dearborn, including police shutting down religious speech directed toward Muslims and a prosecutor filing charges patently at odds with video evidence. Islamist Watch attended the trial, which offered a unique window into the battle to protect First Amendment rights in an era of hypersensitivity.

On the evening of July 3, Michael Marcavage of Repent America — a Philadelphia Christian group known for its strong stances on hot-button social issues such as abortion and homosexuality — was driving with two visitors, Kenneth Fleck and Mike Stockwell. The men say that they spotted Masjid Al-Jamia, a fortress-like mosque located near the University of Pennsylvania campus in West Philadelphia, and spontaneously decided to pull over and preach on the public sidewalk out front.

This much was not in dispute: They began with a hymn and took turns reading Gospel passages. However, a bicycle-bound guard working for AlliedBarton, a private security firm contracted to patrol the streets close to campus, soon approached the evangelists, who by then had drawn a boisterous crowd of a dozen or more Muslims, some visibly upset with the call to Christianity.

According to Marcavage and his cohorts, the guard told them that they could not preach there and had to depart. They refused, prompting him to radio for the university police. Officers arrived and found the Christians continuing to preach, the Muslims arguing with them, and Marcavage filming — which, the missionaries later explained, had been done to protect themselves against false accusations, a tactic employed wisely in Dearborn. A policeman asked the evangelists to step back from the crowd and lower their voices, while Officer Nicole Michel demanded that Marcavage put down the camera, allegedly grabbing him by the arm.

When the dust settled, Marcavage and Fleck were in custody facing two counts: one for “creat[ing] a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor,” under the state’s disorderly conduct statute, and another for “obstructing highways and other public passages,” namely a mosque door opening out onto the sidewalk. The men pleaded not guilty. Stockwell was neither arrested nor charged.

Defense attorney C. Scott Shields invoked the First Amendment throughout the four-hour trial of November 12, which did not involve a jury. He began by petitioning for dismissal on the basis that federal and Pennsylvania courts regularly have backed the right to express controversial views in public spaces — and a sidewalk in an urban area like West Philadelphia, he said, is the “quintessential public forum.” Citing Terminiello v. Chicago, Shields noted that police cannot enforce a “heckler’s veto” by suppressing speech that sparks anger and unrest. Judge Charles Hayden rejected the motion and ordered testimony to commence on the two charges, each of which would be exposed as paper thin.

The assertion that Marcavage and Fleck had blocked a mosque door was the first to fall apart. Amid conflicting eyewitness accounts of their position on the 15-foot-wide sidewalk (see a Google Street View panorama here), including multiple claims that they had stood just two feet from a door, the defense unveiled its coup de grace: video subpoenaed from the masjid’s surveillance camera showing that the men had stayed closer to the curb than the building. As Fleck mentioned later, blocking an entrance would have been counterproductive because the preachers had wanted Muslims to come out and hear their message. At the trial’s conclusion, Assistant District Attorney Joseph McCool withdrew the charge of obstructing a public passage, presumably due to the accusation having been rendered untenable.

His attempt to prove disorderly conduct did not fare much better, even though the judge allowed the charges to be expanded midway through the proceedings to include two other subsections of the statute: “engag[ing] in fighting or threatening, or in violent or tumultuous behavior” and “mak[ing] unreasonable noise.”

The case grew weaker with each witness. Nobody had seen the preachers behave violently or make any threats. Officer Michel, who was quite hostile on the stand, even admitted that the Christians had been detained, in part, for their own safety. Asked whether they had created a hazard by disrupting traffic on busy Walnut Street, her partner explained that the flow of cars had indeed been affected — but by agitated Muslims running across the road. Furthermore, no evidence was presented to demonstrate excessive noise.

Two Muslims testified. A young man, the sole mosque attendee called by the prosecutor, claimed that the evangelists had stirred up the crowd by describing Islam as a “hate religion,” but a female witness contradicted him, revealing that she had heard only statements such as “Jesus is the way.” The defense called a Muslim of its own, a man responsible for security at the mosque that evening. Having exited the building while the Christians were outside, he saw no reason to take any action and continued on to a nearby store.

The trial’s most unsettling twist came when Stockwell, the third minister, testified to overhearing Officer Michel express concern about Marcavage’s footage, with the implication being that it might undermine the police account and exonerate the preachers. The defense then attempted to enter into evidence the video returned to the men upon their release, which they insisted university police officers had tried to erase by recording over it with the lens cap on. The judge refused, ruling that the prosecution had not had sufficient opportunity for review.

The defense did not need it, however, given the preponderance of reasonable doubt already accumulated. Judge Hayden acquitted the men of the remaining charges.

“This case was all about Marcavage and Fleck’s speech,” defense attorney Shields said afterward. “If they had been outside of the mosque talking about anything other than Jesus Christ, they would never have been arrested.” Indeed, based on the actions of security officers, the prosecutor’s decision to go to trial with flimsy evidence, and his courtroom focus on how Muslims were aggravated by the Christians’ message, it is no great leap to suspect that deference to Islamic sensibilities helped shape the saga from beginning to end.

Who ultimately benefited from this needless episode? Islamists pushing the media-enabled calumny that Philadelphia Muslims are besieged by discrimination.

Preying on the contemporaneous public debate about the proposed mosque near Ground Zero, the local chapter of the Council on American-Islamic Relations (CAIR) appears to have convinced at least one Philadelphia news outlet, CBS 3 television, that the above incident was another manifestation of “Islamophobia.” In a segment from early September, now featured on the CAIR-PA YouTube page, reporter Ben Simmoneau stated, “At least three times now in the last month, worshippers here at the Jamia mosque at the corner of 43rd and Walnut have been greeted by protesters as they tried to attend prayers. At one point, they say, those protesters even tried to block the door of this mosque.” The claims set the stage for a puff piece about CAIR.

“Block the door” presumably refers to the now-discredited accusations against Marcavage and Fleck, but the journalist got the timeframe wrong — their arrests occurred two months prior to his report — and as demonstrated in testimony, it was not a protest. And what of the other two incidents cited? Islamist Watch contacted local police seeking evidence but uncovered nothing in their records. As for the source of these dubious allegations, a text version of Simmoneau’s story contains an intriguing clue: a quote from Rugiatu Conteh, CAIR-PA’s outreach director, who claims to have been at the mosque during one of the three supposed “protests,” but who did not show up to tell her tale in court.

Hence, as with the Dearborn trial, one must not celebrate the acquittals too much. Charges never should have been brought before a judge in the first place, significant resources had to be drained to defend the missionaries, and Islamists successfully exploited the overblown incident to advance their own agenda.

Yes, the First Amendment still protects Christians preaching to Muslims. But as the Philadelphia case and recent controversies prove, exercising free speech rights amid hypersensitivity toward Islam does not come without costs.

David J. Rusin is director of Islamist Watch, a project of the Middle East Forum.

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