The ACLU has submitted an amicus curiae (friend of the court) brief seeking reconsideration of a recent decision in which the United States Court of Appeals for the Third Circuit held that a preacher could be arrested and charged with disorderly conduct because of remarks he made to a woman who disagreed with his criticism of homosexuality. In Gilles v. Davis, the Third Circuit invoked the much-discredited "fighting words" doctrine to justify the arrest of a preacher whose words the court found “rude, mocking, confrontational and insulting,” but which were not intended to and did not incite violence.

Of particular concern to the ACLU is the court's holding that the preacher could be punished for "targeting" his remarks toward a woman who voluntarily entered into a dialogue with him. As the Supreme Court has emphasized, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” In the same decision, the court noted that protection of unpopular speech should be our highest priority: “A principle function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, create dissatisfaction with conditions as they are, or even stirs people to anger.”

The ACLU has urged the Third Circuit to honor these principles and reconsider its ruling that Mr. Gilles could properly be prosecuted for his provocative preaching.


Kim Watterson, Reed Smith; Mary Catherine Roper, ACLU-PA

Date filed

March 8, 2005


Third Circuit Court of Appeals