If you were of a mind to compile an index of government decisions regarding when and where in the United States people are allowed to exercise their constitutional right to freedom of speech and religious expression, you’d want to file this one under “Train Station.”

In late January, two street preachers lost a protracted legal battle with New Jersey’s public-transit authority.

Don Karns and Robert Parker were arrested nearly five years ago by transit police for preaching on state property without a permit. Now, in a two-to-one decision, a federal appeals court has rejected their claim that the arrests violated their civil rights.

Though the court loss likely marks the end of the case, the defeat has spurred a larger debate about when state and local statutes can — or should — take precedence over the rights guaranteed under the First Amendment.

According to court documents, at 6 a.m. on June 26, 2012, two NJ Transit officers responded to a complaint that two men were loudly preaching on the railway platform at a station outside Princeton, New Jersey.

Ascertaining that Karns and Parker had not obtained the required permit to preach on NJ Transit property, the officers charged them with trespassing and obstruction, the latter owing to the fact that the preachers were unable (Parker) or unwilling (Karns) to provide valid identification. Karns was acquitted on both counts; Parker was convicted of defiant trespass, but a higher court reversed the conviction.

In 2014, with backing from the Rutherford Institute, a Christian civil-liberties group, the preachers sued for damages, alleging violations of the First, Fourth, and Fourteenth Amendments. After the U.S. District Court of New Jersey granted the defendant’s motion for summary judgment and dismissed the case, Karns and Parker appealed.

The appeals court ruled that as an “arm of the state,” NJ Transit and its officers are immune from liability. But the court went further, ruling that even if the officers could have been held liable, the preachers were never denied their constitutional rights.

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Writing for the majority, Third Circuit Judge Michael A. Chagares noted that both men “led the officers to believe that they would remain on the platform despite knowing that they lacked the requisite permit.”

Added Judge Chagares: “These facts amply support the officers’ determination of probable cause that Karns and Parker were engaged in criminal trespass.”

In response to the ruling, attorney John Bloor, who represented the ministers, told WHYY in Philadelphia, “It’s a step against free speech. It’s allowing people who are exercising constitutional rights to be silenced, if their speech is not agreeable to certain listeners.”

One issue that the appeals court touched on only glancingly: NJ Transit’s permitting process.

“Parker had previously been informed that a permit was required to preach on NJ Transit property pursuant to N.J. Admin. Code §16:83-1.1, which provides that persons wishing to engage in non-commercial speech on NJ Transit property are required to obtain a non-commercial certificate of registration,” Judge Chagares noted in the decision.

And, in a footnote:

All permits are approved as long as the applicant executes the permit and states his or her understanding of the relevant regulations. NJ Transit typically issues ten to twenty permits weekly. Indeed, the record shows that between June 2012 and July 2012, NJ Transit received forty-six permit requests, including thirty from religious organizations or entities and fifteen from political campaigns or entities. Only two of these requests were denied, either because the permit was returned too late or not at all. Permit holders are required to remain at specific locations within the station as determined by the station manager to ensure the safety of NJ Transit customers and permit holders. [citations removed]

Presumably, the street preachers had opted not to file for a permit.

“I thought that the preachers might have challenged the constitutionality of the New Jersey law that requires a permit for ‘noncommercial expression’ on NJ transit property, for discriminating on the basis of viewpoint, or for being irrational even if it was content-neutral. They might have a case there,” Lata Nott, executive director of the First Amendment Center at the Newseum in Washington, D.C., commented to Front Page Confidential via email.

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(Judge Jane Richards Roth, who was the lone dissenter on the three-judge appellate panel, differeed with her colleagues on the “arm of the state” claim; she did not address the permit process in her dissent.)

“The First Amendment does allow for content-neutral ‘time, place, and manner restrictions’ on speech/assembly, as long as there are rational reasons for these restriction,” Nott explained. “For example, a lot of cities require protesters to obtain a permit in order to hold a protest in a public park or street, so that the city can ensure there’s enough law enforcement in place, traffic isn’t blocked indefinitely, and other people aren’t constantly prevented from using the park for non-protest purposes.”

Nott pointed to the 2002 U.S. Supreme Court case, Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton. In that case, the high court ruled in favor of the Jehovah’s Witnesses, overturning a local ordinance that had required people to register and obtain a permit before engaging in door-to-door canvassing.

“I do find it odd that one would need a permit to talk about noncommercial matters on NJ Transit property, but the Third Circuit didn’t really analyze the constitutionality of this law,” she wrote.

Charles C. Haynes, founding director of the Newseum’s Religious Freedom Center, discerned a similar opening.

“In this case, if the preachers can show to the full appeals court that they were treated unfairly because of their religious views, they might prevail,” Haynes told Front Page Confidential. “If, for example, other speakers or performers were allowed to give out messages or music without a permit, then a case could be made that these preachers were singled out for special treatment. So far, at least, they have not made that case.”

Crimes and courts reporter Bobby Allyn covered the case for WHYY in Philadelphia. Click the link below to read his story:

“Appeals Court Sides with NJ Transit on Arresting Preachers on Platform”

Click the link below to read the decision of the U.S. Court of Appeals for the Third Circuit in the street preachers case:

Don Karns and Robert Parker v. NJ Transit, et al.