In The
Supreme Court of Virginia
________________________________________
RECORD NO. 080998
_________________________________________
Bradley S. Tanner, Eric Alexander Williams and
BAE Ventures, Inc. T/A The Peppermint Beach Club,
Appellants,
v.
The City of Virginia Beach
Appellee.
__________________________________
BRIEF OF AMICI CURIAE FOR
THE THOMAS JEFFERSON CENTER
FOR THE PROTECTION OF FREE EXPRESSION
IN SUPPORT OF APPELLANTS
________________________________
Rebecca K. Glenburg
VSB No. 44099
Legal Director
ACLU of Virginia
530 E. Main Street
Suite 310
Richmond, VA 23219
Telephone: 804-644-8080
Fax: 804-649-2733
Email: rglenburg@acluva.org
J. Joshua Wheeler
VSB No. 36934
Robert M. O’Neil
The Thomas Jefferson Center for
the Protection of Free Expression
400 Worrell Drive
Charlottesville, VA 22911
Telephone: 434-295-4784
Fax: 434-296-3621
Email: jjw@tjcenter.org
Counsel for Amici Curiae
TABLE OF CONTENTS
STATEMENT OF INTEREST OF AMICI CURIAE .................................. 1
NATURE OF THE CASE AND MATERIAL PROCEEDINGS IN THE
TRIAL COURT ........................................................................................ 2
STATEMENT OF FACTS ........................................................................ 2
ASSIGNMENTS OF ERROR .................................................................. 2
QUESTIONS PRESENTED .................................................................... 3
SUMMARY OF ARGUMENT................................................................... 3
ARGUMENT ............................................................................................ 6
I.
REGULATION OF SOUND UNDER VAGUE AND IMPRECISE
STANDARDS SUCH AS THOSE CHALLENGED HERE
THREATENS ALL FORMS OF PROTECTED EXPRESSION. ...... 6
II.
STANDARDS SUCH AS “REASONABLE” SHOULD BE
ACCEPTABLE ONLY WHERE MORE PRECISE MEASURES
ARE UNAVAILABLE. .................................................................. 11
CONCLUSION....................................................................................... 16
i
CERTIFICATE OF COMPLIANCE ........................................................ 17
ii
TABLE OF CITATIONS
Case
Page
Annabel’s Ice Cream Corp. v. Town of Glocester, 925 F. Supp. 920
(D.R.I. 1996) .......................................................................................... 10
Cantwell v. Connecticut, 310 U.S. 296 (1940)................................... 9, 10
City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988) ....
............................................................................................................. 7 9
Deegan v. City of Ithaca, 444 F.3d 135 (2d Cir. 2006) .......................... 10
Dupres v. City of Newport, 978 F. Supp. 429 (D.R.I. 1997) .................. 10
Elliot, et. al. v. Virginia, 267 Va. 464, 593 S.E.2d 263 (2004) .................. 5
Estes Funeral Home, et. al. v. Adkins, et. al., 266 Va. 297; 586 S.E.2d
162 (2003) ............................................................................................... 7
Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) .............. 6
Jim Crockett Promotions, Inc. v. Charlotte, 706 F.2d 486 (4th Cir. 1983) ..
................................................................................................................ 4
Lionhart v. Foster, 100 F. Supp. 2d 383 (E.D. La. 1983) ....................... 10
iii
Nichols v. City of Gulfport, 589 S.2d 1280 (Miss. 1991) ........................ 10
Owens v. Virginia, 211Va. 633, 635; 179 S.E.2d 477 (1971) ................ 12
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) ....................................... 4
Terminiello v. Chicago, 337 U.S. 1 (1949)) ............................................. 8
United States v. Playboy Entertainment Group, 529 U.S. 803 (2000) ... 12
U.S. Labor Party v. Pomerlau, 557 F.2d 410 (4th Cir. 1977) .................. 15
Other:
U.S. Constitution
First Amendment ...................................................................passim
Constitution of the Commonwealth of Virginia
Article I, § 12 .........................................................................passim
City of Charlottesville Code of Ordinances § 16.1 et. seq. (viewable in its
entirety at http://www.municode.com/resources/gateway.asp?pid=12078
&sid=46) .........................................................................................passim
Virginia Beach Code § 23-47..........................................................passim
iv
STATEMENT OF INTEREST OF AMICI CURIAE
The Thomas Jefferson Center for the Protection of Free
Expression is a nonprofit, nonpartisan organization located in
Charlottesville, Virginia. The Center has as its sole mission the
protection of freedom of speech and press from threats of all forms.
Since its founding in 1990, the Center has pursued that mission in
various forms, including the filing of amicus curiae briefs in this Court
and state and federal courts around the country in cases involving
important free expression issues.
The American Civil Liberties Union of Virginia, Inc. is a non-profit
Virginia corporation affiliated with the American Civil Liberties Union
(ACLU), the oldest and largest citizen membership organization devoted
to preservation and furtherance of Constitutional rights in the United
States. The ACLU of Virginia has approximately 11,000 members and
has appeared frequently before the state and federal courts of Virginia
both as amicus and direct counsel in constitutional cases. One of the
ACLU’s core commitments is the protection of the First Amendment
freedom of speech.
1
NATURE OF THE CASE AND MATERIAL PROCEEDINGS
IN THE TRIAL COURT
Amici Curiae concurs with the statement of the Nature of the Case
and Material Proceedings in the Trial Court contained in the Opening
Brief of Appellants.
STATEMENT OF FACTS
Amici Curiae concurs with the Statement of Facts contained in the
Opening Brief of Appellants.
ASSIGNMENTS OF ERROR
This brief will only directly address Assignment of Error No.
1.
1.
The trial court erred in rejecting the Appellants’ facial challenge to
City ordinance §23-47.
2.
The trial court erred in rejecting the Appellants’ “as applied”
challenge to City ordinance §23-47.
3.
Where the trial court determined that the evidence “unequivocally
establishes threat the enforcement of the noise ordinance is
selective and uneven” and that the Appellants demonstrated that
“other persons similarly situated [have not been] prosecuted”
2
under the noise ordinance, it was error to fail to find a
constitutional violation and to fail to afford any relief to Appellants.
QUESTIONS PRESENTED
This brief will only directly address Question Presented No. 1.
1.
Did the trial court err in rejecting the Appellants’ facial challenge to
City ordinance §23-47? (Assignment of Error 1)
2.
Did the trial court err in rejecting the Appellants’ “as applied”
challenge to City ordinance §23-47? (Assignment of Error 2).
3.
Where the trial court determined that the evidence “unequivocally
establishes that the enforcement of the noise ordinance is
selective and uneven” and that the Appellants demonstrated that
“other persons similarly situated [have not been] prosecuted”
under the noise ordinance, was it error to fail to find a
constitutional violation and to fail to afford any relief to the
Appellants? (Assignment of Error 3).
SUMMARY OF ARGUMENT
This appeal implicates novel, though critically important, issues in
municipal regulation of expression. Although the immediate dispute
3
involves sound emanating from a place of public accommodation, the
full range of potentially effected speech is far broader. There has been
no claim, for example, that the content of the expression emanating from
the Peppermint Beach Club falls into one of a few recognized categories
of less protected speech under the First Amendment. See e.g., R.A.V. v.
City of St. Paul, 505 U.S. 377, 382-83 (1992). Moreover, “the right to
amplify speech is within the protection of the First Amendment.” Jim
Crockett Promotions, Inc. v. Charlotte, 706 F.2d 486, 491 (4th Cir.
1983)(citations omitted). As such, amici submits that if the state’s
largest municipality is permitted to regulate appellants’ expressive
activity in the arbitrary manner that the current proceeding documents
and challenges, then no form of protected speech would be immune
from similar suppression in any municipality in the Commonwealth. In
other words, if audible music may be banned solely because a public
official deems it to be “loud, disturbing or unnecessary,” with no
quantitative or externally verifiable measures, no guarantee exists that
audible political, religious, literary or scientific speech could not also be
suppressed on the basis of a single officer’s judgment that it too is “loud,
disturbing or unnecessary.” Such governmental authority directly
4
contravenes the First Amendment of the United States Constitution,
Article I, § 12 of the Constitution of the Commonwealth of Virginia, and
directly applicable decisions of this Court. See Elliot, et. al. v. Virginia,
267 Va. 464, 473-74; 593 S.E.2d 263, 269 (2004) (“Article I, § 12 of the
Constitution of Virginia. is coextensive with the free speech provisions of
the federal First Amendment.”)
Such unfettered regulatory discretion is, moreover, quite
unnecessary to protect the indisputable interests of local government in
the peace, order and safety of their communities. Excessive noise in
public places may be defined and thus regulated when and where such
regulation is warranted, by objective measures such as decibel levels.
The failure to employ such measures creates the sort of unreviewable
discretion manifest in this proceeding; further, the ready availability of
such applicable measures gravely undermines any case to be made for
continued subjective or discretionary standards in regulating expression.
In short, wherever precision is possible, or the unavailability of precise
standards has not been shown, vague and imprecise standards are
constitutionally unacceptable. Municipalities like the City of Virginia
Beach can and should do better.
5
ARGUMENT
I.
REGULATION OF SOUND UNDER VAGUE AND IMPRECISE
STANDARDS SUCH AS THOSE CHALLENGED HERE
THREATENS ALL FORMS OF PROTECTED EXPRESSION.
While this proceeding might appear to implicate only expression
that entertains patrons of a place of public accommodation, the potential
reach of such regulatory authority is far broader – indeed, virtually
limitless. Standards such as “loud, disturbing and unnecessary” – the
sole legally operative desiderata in Virginia Beach – empower local
officials to restrict or suppress sound they disfavor, with no obligation to
meet any objective measures. A regulation of speech that lacks
narrowly drawn, precise and clear standards “contains more than the
possibility of censorship through unfettered discretion.” Forsyth County
v. Nationalist Movement, 505 U.S. 123, 133 (1992). Especially where,
as here, no citizen has complained that the targeted sound interfered
with lawful activities, or impaired the ability to conduct other events or to
hear other messages, the wholly discretionary nature of the city’s
intervention is manifest. Judicial review of such action is of course
impossible in the absence of more objective sound measurement. As
the U.S. Supreme Court has cautioned:
6
[T]he absence of express standards makes it difficult to
distinguish, "as applied," between a licensor's legitimate
denial of a permit and its illegitimate abuse of censorial
power. Standards provide the guideposts that check the
licensor and allow courts quickly and easily to determine
whether the licensor is discriminating against disfavored
speech. Without these guideposts, post hoc
rationalizations by the licensing official and the use of
shifting or illegitimate criteria are far too easy, making it
difficult for courts to determine in any particular case
whether the licensor is permitting favorable, and
suppressing unfavorable, expression.
City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 758
(1988). Even a charge that one sound source has been singled out for
disadvantageous treatment – a clearly cognizable constitutional claim
under this Court’s insistence on equal treatment of citizens, e.g., Estes
Funeral Home, et. al. v. Adkins, et. al., 266 Va. 297, 304-06; 586 S.E.2d
162, 166-67 (2003) – is impossible to prove in the absence of evidence
that others emitted comparable sounds that went unregulated. Such a
situation is intolerable within the immediate context of fully protected
sound designed to entertain. The implications of such a subjective
regime are, however, far broader and even more disturbing.
The broader reach of such a regime is readily apparent. If, for
example, a speech in a public park or square by a politically unpopular
or uncongenial speaker is deemed by a single officer to be “loud” or
7
“disturbing,” suppression of that speaker and his or her message might
follow. Indeed, given the strong emotions felt by so many on both sides
of the debate over legalized abortion, it is not difficult to imagine an
officer concluding that any discussion of the issue in a public place is
“disturbing.” Further, a resulting sanction would be unreviewable; even
a sound recording of the event could not legally dispel the officer’s
judgment that the speech and its delivery abridged the Virginia Beach
ordinance. Though this brief does not address whether Virginia Beach
officials have engaged in selective enforcement, the potential for such a
threat to unpopular or unsettling political speech inheres in the
challenged regulatory structure. That is the clear import of the U.S.
Supreme Court’s caution in Terminiello v. Chicago, 337 U.S. 1, 4 (1949):
[A] function of free speech under our system of
government is to invite dispute. It may indeed best serve
that high purpose when it induces a condition of unrest,
creates dissatisfaction with conditions as they are, or
even stirs people to anger. [ ]That is why freedom of
speech, though not absolute . . . is nonetheless protected
against censorship or punishment unless shown likely to
produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience,
annoyance or unrest.
A closely analogous concern applies to municipal regulation of
fully protected religious speech. Many an itinerant preacher brings to a
8
public park or podium a message that some might find unwelcome, or
even abhorrent, which could easily be deemed “disturbing” and
perceived as “loud,” irrespective of its actual volume. It is precisely
such a regime against which the U.S. Supreme Court cautioned as early
as Cantwell v. Connecticut, 310 U.S. 296, 310 (1940):
In the realm of religious faith, and in that of political belief,
sharp differences arise. In both fields the tenets of one
man may seem the rankest error to his neighbor. To
persuade others to his own point of view, the pleader, as
we know, at times, resorts to exaggeration, to vilification
of men who have been, or are, prominent in church or
state, and even to false statement. But the people of this
nation have ordained in the light of history, that, in spite of
the probability of excesses and abuses, these liberties
are, in the long view, essential to enlightened opinion and
right conduct on the part of the citizens of a democracy.
Additionally, the absence of objective regulatory standards in the
Virginia Beach ordinance makes it impossible for the religious speaker
to anticipate when or how expression might be deemed violative of local
law. Cf., City of Lakewood, 486 U.S. at 757 (“[T]he mere existence of
the licensor’s unfettered expression…intimidates parties into censoring
their own speech, even if the discretion and power are never actually
abused.”) And again, any sanction imposed under the challenged
ordinance would be judicially unreviewable. The potential for
9
suppression of unpopular though clearly protected religious messages is
inescapable. “Here we have a situation analogous to a conviction under
a statute sweeping in a great variety of conduct under a general and
indefinite characterization, and leaving to the executive and judicial
branches too wide a discretion in its application.” Cantwell, 310 U.S. at
308.
Several other courts have recognized precisely such hazards and
have invalidated ordinances virtually indistinguishable from that of
Virginia Beach. Most clearly apposite, and uniformly hostile to such
imprecise approaches to local sound regulation, are Nichols v. City of
Gulfport, 589 S.2d 1280 (Miss. 1991); Annabel’s Ice Cream Corp. v.
Town of Glocester, 925 F. Supp. 920 (D.R.I. 1996); Dupres v. City of
Newport, 978 F. Supp. 429 (D.R.I. 1997); and Lionhart v. Foster, 100 F.
Supp. 2d 383 (E.D. La. 1983). Closely analogous is the very recent
Second Circuit Court of Appeals ruling in Deegan v. City of Ithaca, 444
F.3d 135 (2d Cir. 2006). Such rulings represent judicial disfavor for
subjective and discretionary approaches to municipal sound regulation.
The ordinance challenged here seems to be in poor company, and for
substantial reasons.
10
For these reasons, amici curiae urges that the challenged ruling
be remanded for further consideration in light of applicable constitutional
standards. Such unfettered municipal discretion is unacceptable under
both the United States and Virginia Constitutions.
II.
STANDARDS SUCH AS “REASONABLE” SHOULD BE
ACCEPTABLE ONLY WHERE MORE PRECISE MEASURES
ARE UNAVAILABLE.
Not only is the challenged regulatory discretion unconstitutional; it
is also wholly unnecessary. There has been no showing that more
precise sound measures would not meet the city’s needs in maintaining
public order and peace. Many municipalities, including a number of
other Virginia communities, base their sound regulation on clearly
defined and objectively measurable decibel levels. The presumed
availability of such quantitative criteria creates two inescapable
inferences about the challenged ordinance and its enforcement: First,
that the city’s failure to incorporate such standards reflects acceptance if
not an actual preference for a subjective sound regulation regime; and
second, continued resort to imprecise subjective measures is highly
suspect because a far more reliable alternative beckons. Closely
analogous is the U.S. Supreme Court’s invalidation of a needlessly
11
intrusive regulation of cable broadcasting chiefly because a less
intrusive option existed (and had in fact previously been adopted by
Congress): “When a plausible, less restrictive alternative is offered to a
content-based speech regulation, it is the Government’s obligation to
prove that the alternative will be ineffective to achieve its goals.” United
States v. Playboy Entertainment Group, 529 U.S. 803, 816 (2000).
And, as this Court stated in striking down the state’s anti-riot statute on
overbreadth grounds:
Any attempt to restrict liberties secured by the First
Amendment must be justified by clear public interest,
threatened not doubtfully or remotely, but by clear and
present danger. The rational connection between the
remedy provided and the evil to be curbed, which in other
contexts might support legislation against attack on due
process grounds, will not suffice. These rights rest on
firmer foundation. Accordingly, whatever occasion would
restrain orderly discussion and persuasion, at appropriate
time and place, must have clear support in public danger,
actual or impending. Only the gravest abuses,
endangering paramount interests, give occasion for
permissible limitation.
Owens v. Virginia, 211Va. 633, 635; 179 S.E.2d 477, 479 (1971)
(emphasis added) (citations omitted).
Not only has there been no proof here of the inefficacy of decibellevel regulation of publicly audible sounds, the analogous ordinance of
12
the university-based community of Charlottesville offers ample evidence
of the availability of a more precise regulatory standard. City of
Charlottesville Code of Ordinances § 16.1 et. seq. (viewable in its
entirety at http://www.municode.com/resources/gateway.asp?pid=
12078&sid=46.1 For example, the maximum sound level in a residential
zone “between 6:00 a.m. and 10:00 p.m….[is] 55 dBA [weighted decibel
level] when measured at or outside the property boundary.” City of
Charlottesville Code of Ordinance § 16.8 (a). In Charlottesville
restaurants between the hours of 11:00 p.m. and 6:00 a.m., “no person
shall permit or cause any source of sound to create a sound level…in
excess of seventy-five (75) dB(A) when measured at or outside the
property boundary.” City of Charlottesville Code of Ordinance § 16.11.
This is not to argue that the Charlottesville ordinance is, for First
Amendment purposes, the perfect model for a noise ordinance; insofar
as the ordinance regulates noise in Charlottesville’s downtown business
district, it does not limit violations exclusively to specific decibel levels.
But even that provision contains far more objective and precise
guidelines than are found in the Virginia Beach ordinance. For example,
1
See Opening Brief of Appellants for examples of other Virginia municipalities with
noise ordinances specifying decibel levels.
13
prima facie evidence of excessive noise in the business district may be
shown by the “use or operation of any instrument, machine, device or
human voice to cause a sound generation of seventy-five (75) db(A) or
more at a distance of ten (10) feet or more from the source of the sound
generation,” or “[c]redible testimony or other evidence of a sound
generation which, to a person of normal hearing acuity, is plainly audible
above the background noise level at a distance of one hundred twentyfive (125) feet or more from the source of the sound generation.” City of
Charlottesville Code of Ordinance § 16.10 (b) (1-2) (emphasis added.)
Ironically, the only truly definite and objective criteria in the Virginia
Beach ordinance creates a total ban on the “use of any drum,
loudspeaker or other instrument or device for the purpose of attracting
attention, by creation of noise, to any performance, show or sale or
display of merchandise,” irrespective of whether the noise might disturb
a person. Virginia Beach Code § 23-47 (a) (5).
The potential for abuse even of seemingly objective standards
also deserves note; especially pertinent was the Fourth Circuit’s
invalidation of a Baltimore sound ordinance that defined maximum
permissible decibel levels for various sectors of the city, but failed
14
constitutional scrutiny because of official discretion in choosing the
locations at which sound readings were to be taken. The Court of
Appeals cautioned that even with numerical measures of sound level in
the ordinance, “[the] speaker is . . . penalized unless he correctly
guesses where the investigator will take a measurement. Because a
violation depends on the subjective opinion of the investigator, the
speaker has no protection against arbitrary enforcement of the
ordinance.” U.S. Labor Party v. Pomerlau, 557 F.2d 410, 412 (4th Cir.
1977). By contrast, the challenged Virginia Beach ordinance does not
reach that level of scrutiny, since not even the taking of sound readings,
much less the venue for such readings, derives any mandate from its
terms. Quite simply, a municipality should not be able to rest sound
regulation on vague and subjective criteria until and unless it has shown
the unavailability or inefficacy of more precise measures. Since Virginia
Beach is the Commonwealth's most populous community with a varied
and diverse population, it would not be unreasonable to expect of that
city a noise ordinance that assures not only the health and safety of its
citizens but also a range of expression unfettered by the bias or pique of
those who enforce it.
15
CONCLUSION
For the foregoing reasons, amici respectfully urges that this Court
grant the Appellants' appeal and that the matter be remanded for further
proceedings that comport more closely with the U.S. and Virginia
Constitutions and the rulings of this Court.
Respectfully submitted,
Rebecca K. Glenburg
VSB No. 44099
Legal Director
ACLU of Virginia
530 E. Main Street
Suite 310
Richmond, VA 23219
Telephone: 804-644-8080
Fax: 804-649-2733
Email: rglenburg@acluva.org
J. Joshua Wheeler
VSB No. 36934
Robert M. O'Neil
The Thomas Jefferson Center for
the Protection of Free Expression
400 Worrell Drive
Charlottesville, VA 22911
Telephone: 434-295-4784
Fax: 434-296-3621
Email: jjw@tjcenter.org
16
CERTIFICATE OF COMPLIANCE
I hereby certify that on December ~, 2008, in compliance with
Rule 5:26(d), twelve copies of the foregoing Brief of Amici Curiae, along
with emailing a .pdf copy to the court, were mailed, certified mail to the
Clerk of Court at the address below for filing with this Court. In addition,
three copies of the brief were first class with postage prepaid mailed to
each of the counsel for the parties listed below.
J. Joshua Wheeler
VSB No. 36934
Robert M. O'Neil
The Thomas Jefferson Center for
the Protection of Free Expression
400 Worrell Drive
Charlottesville, VA 22911
Telephone: 434-295-4784
Fax: 434-296-3621
Email: jjw@tjcenter.org
Rebecca K. Glenburg
VSB No. 44099
Legal Director
ACLU of Virginia
530 E. Main Street
Suite 310
Richmond, VA 23219
Telephone: 804-644-8080
Fax: 804-649-2733
Email: rglenburg@acluvacorg
Clerk of Court
Supreme Court of Virginia
100 North 9th Street, 5th Floor
Richmond, VA 23219
17
Counsel for the Appellants
Kevin E. Martingayle (VSB No. 33865)
STALLINGS & BISCHOFF, P.C.
2101 Parks Avenue, Suite 801
Post Office Box 1687
Virginia Beach, VA 23451
Telephone: 757-422-4700
Fax: 757-428-6982
Email: martingayle@sb-Iawgroup.com
Counsel for Appellee
Leslie L. Lilley (VSB No. 18196)
Christopher S. Boynton (VSB No. 38501)
Office of the City Attorney
Municipal Center, Building One
2401 Courthouse Drive
Virginia Beach, VA 23456
Telephone: 757-385-4531
Fax: 757-385-5687
E-mail: cboynton@vbgov.com
18