Street Preacher Can Continue to Preach Hell Fire.

MODESTO, Cali. – Kevin Borden, a street preacher and real estate agent who sued the City of Modesto, California after security guards from Brenden Theatre, in which the City of Modesto owns and had rented to the theater is again free to share his faith to those passing by the downtown plaza. Security guards of a local theater had told him he may not preach in front of their establishment.

City officials have promised not to exclude Borden or any other vocal resident from downtown’s Tenth Street Plaza, not even on Saturday nights, when movie and restaurant traffic is at its peak.

“He has every right to be in the public square, just like everyone else,” said attorney Heather Hacker of the Alliance Defense Fund, a Christian legal group best known for its opposition to gay marriage. The group represented Borden in court.

According to his lawsuit, Borden, a real estate agent, had been spouting his message about sin and wickedness on Saturday nights for about three years before things came to a head last spring.

Borden sparred with security guards, who told him the theater had rented the plaza from the city and could have him arrested for trespassing if he did not stay outside a barricaded area.

Borden questioned city officials who said the plaza became private space when it was rented, for $100 per night, and recommended that Borden look for another place to preach.

Then Borden turned to the ADF.

Hacker sent a letter to the city in April, promising litigation if Borden’s free speech right was not protected. Three months later, the city had not responded, so the ADF filed a lawsuit on Borden’s behalf.

In legal papers, Hacker said Borden is an evangelical Christian who believes he must follow a message Jesus gave to his disciples, found in the book of Mark: “Go into all the world and preach the good news to all creation.”

He may not use a public address system because the Modesto police stopped giving him amplification permits in March 2007, citing complaints from downtown businesses.

He may shout his gospel at all who pass by.

In legal papers, Borden insisted that he understands the boundaries. Borden states in the affidavit filed, “I have never touched, followed or harassed any individual waiting to patronize the theater.”

The settlement, which was signed by U.S. District Judge Anthony W. Ishii, says Borden has a right to be in the plaza as long as it is not rented for a private event that is closed to the public.

A spokesman for Brenden Theatres could not be reached for comment, nor could City Attorney Susana Alcala Wood.

Attorney Rosemary Mc-Guire of Fresno handled the case for the city; she could not be reached for comment.

In legal papers, McGuire argued that the theater had a right to regulate the plaza when it rented the outdoor area from the city.

She downplayed the restrictions placed on Borden, saying he “had unfettered access to the plaza for all but a few hours on Saturday evenings.”

In the end, McGuire inked a settlement with Hacker, who noted that the theater was not holding any special events when Borden was pushed to the perimeter of the plaza.

“Free speech means free speech for everyone,” Hacker said.

According to the settlement filed on March 18th, 2009 in U.S. District Court in Fresno, the City of Modesto will pay the bill for Kevin Borden’s legal expenses, $35,000.

Consent Order in Borden v. City of Modesto, U.S. District Court for the Eastern District of California, Fresno Division