Plaza preacher sues Modesto for access

Kevin Borden of Modesto believes strongly that, as a Christian, he has a duty to share the gospel -- loudly -- in the public square. Brenden Theatres and other Tenth Street Plaza businesses believe their customers have the right to enjoy a Saturday evening without someone preaching at them about sin and hell.

It's a classic case of free speech vs. public access, and it's led to a lawsuit filed by Borden against the city of Modesto.

The lawsuit comes after months of wrangling between city officials and Borden, who was pushed out of the area when Brenden Theatres began renting the plaza from the city for $100 on Saturday nights.

According to the lawsuit, Brenden set up ever-expanding barricades that eventually extended from J to K streets, covering the entire expanse of Tenth Street Plaza and not just the area immediately in front of the theater. The lawsuit also says Brenden security guards threatened Borden and his friends -- and only them -- with trespassing and arrest if they entered the area.

"Really, what's involved here is a fundamental right that goes back to the Founding Fathers," said attorney Heather Hacker of the Folsom-based Alliance Defense Fund, which tackles matters of religious freedom and is representing Borden.

"This is a public square. Basically, if the speech is offending someone, he still has the right to be there under the Constitution."

Saturday night, three days after the lawsuit was filed, the barricades were gone and the security guards stayed mostly inside the theater. About 8:30 p.m., a man stood up on Tenth Street next to the plaza with a large sign: "God is Angry with the Wicked Every Day. Psalm 7-11." Borden stood atop one of the stone pedestals nearby.

"My name is Kevin," he said in a loud voice. "I'm here to read a psalm to you. Here's what it says ... "

'He's really rude'

Borden, 36, a real estate agent by trade, preached an open-air sermon filled with more old-time fire and brimstone than love and forgiveness, although he talked on those issues, too.

It's the noise level, as well as the subject, that annoys some people. "If he wanted to be a preacher punk, let him go to a church and do it," said Martin Munoz, who said Borden's speech Saturday night disrupted his sidewalk dinner with his friend Mariya McGrew. "Our meal was ruined."

The two were eating at a fenced table area on the west side of the plaza.

"I even yelled at him that he was ruining my dinner," McGrew said. "He's really rude. He has no respect for anyone. And my God is love. God is forgiving."

A few other people, however, gathered to hear what Borden had to say. Others ignored him. Some heckled him as they passed.

"Woo, hoo! Fornication!" yelled one young woman.

"See what I mean?" responded Borden, who went on to talk about immorality and consequences.

Seeks help from lawyers

This spring, after months of exclusion from the plaza, Borden contacted the Alliance Defense Fund. Hacker sent a letter in April on Borden's behalf to City Attorney Susana Alcala Wood, giving her until April 28 to respond to the allegations and ensure Borden's right to free speech in the city-owned plaza.

Hacker said last week that she never heard from the city, so she filed a lawsuit Wednesday in U.S. District Court in Fresno. It names as defendants the city, Wood and Vicki Rice, events supervisor for the city's parks and recreation department, which oversees the plaza's rentals.

Wood said she couldn't comment on the lawsuit because she hasn't seen it yet. She did answer questions about plaza rentals and the letter she received in April.

She said Tenth Street Plaza is a public plaza, but one that can be rented by anyone without limit. Although she said that "absolutely, as a public place, anyone has a right to speak (there)," private rental parties also have rights and can exclude others from their rented area.

"Let's say tomorrow night, someone wants to come out and engage in speech; they have the right to do so," Wood said.

"If someone has rented out the entire plaza area, they have the right to exclude people from that area. That's true. Anyplace else that's not reserved, anyone can go there. And anyone can go to any of the businesses there; you can't block them from that."

An Alliance Defense Fund news release said Borden was "peacefully sharing his faith."

Wood said she heard a different story.

"As I understand it from staff," she said, "he was pretty aggressively approaching the customers at Brenden Theatre, questioning their movie choices, even following them up to the box office."

Hacker, however, said Borden "knows his parameters, and he knows that people have the right to go into the theater. He does preach on a moral message, but Kevin has no interest in hassling people."

Conflicting stories

There are three main points in the lawsuit:

Amplification: When Borden began his open-air preaching and other activities in 2006, he sought and was given permits from the Modesto Police Department to use a sound system. In March 2007, the lawsuit says that in response to business complaints, "the Police Department refused to grant any further amplification permits to Mr. Borden unless he agreed to move to the very edge of the plaza and point the speakers away from the plaza area."

Borden continued to speak, but without a sound system.

Confrontations: The lawsuit says that on March 31, 2007, police officers approached Borden and his friends and told them they had to leave the area, that the First Amendment didn't protect their speech when it was offending someone.

The April letter to Wood says "the chief of police, who happened to be visiting the area with his family that night, approached and told the officers that Mr. Borden and his associates were permitted to conduct their activities in the plaza as long as they were not blocking pedestrian traffic."

When asked about the letter, Police Chief Roy Wasden said he recalled the incident, but added: "I never heard my officers tell anyone they had to leave. They were telling (Borden's group) they couldn't prevent people from going into the theater and that kind of thing."

Wasden said he could not comment on the lawsuit, which claims Brenden security guards have "on several occasions" threatened Borden and his friends with arrest for "trespassing, even when they have just been present in the area and not passing out literature or preaching."

Rental of plaza: The lawsuit says that beginning in November, Brenden began obtaining events permits for the plaza area nearly every Saturday night and has gradually expanded "police-style barricades" until they extend from J to K streets.

Julie Hannon, acting director of the city's parks and recreation department, said the theater had rented the plaza on several Saturdays, including every weekend in March through May.

Will Ryan, Brenden's assistant general manager, confirmed the theater often rented "the whole plaza, from J to K" streets. He acknowledged problems with Borden and his group but deferred further comment to General Manager Saul Trujillo, who said in an e-mail Sunday evening that he had been sick over the weekend and had forwarded the matter to corporate headquarters.

Wood said she hopes for a quick resolution.

"My goal is to resolve this in the most efficient way possible," she said.

"If this group wants access to the plaza, they have the right to do so."

Bee staff writer Sue Nowicki can be reached at snowicki@modbee.com or 578-2012.