Legislating loudness: the free-speech factor

Thursday, August 4, 2011

In America, we have the right to speak freely, but not always loudly.

In an editorial this week, The Washington Post called on District of Columbia officials to crack down on loud labor demonstrations in the city:

“There is a lot that is offensive about the noisy labor protests that have become a fixture in Washington’s downtown business district. There is the raucous chanting accompanied by bucket-banging and whistle-blowing and the incessant clang of cowbells. There’s the cynical use of homeless people to do this dirty work. What’s most offensive, though, is the appropriation of the First Amendment as an excuse for District officials to do absolutely nothing to protect those who live and work in the city from unwelcome — even intolerable — noise.”

The Post is located across the street from one such demonstration, and the editorial writer acknowledges being irked. But the writer has a point. A carefully crafted statute can limit noise without violating the First Amendment guarantee of free speech.

To comply with the First Amendment, the restrictions have to be applied in a content-neutral way. In other words, decibels can be measured scientifically and governments can set a reasonable limit. Governments can’t, however, set a noise limit for some activities and not for others. Identical levels of sound — whether from chants, music, car horns or the beating of pots and pans — have to be treated identically.

When a law doesn’t take an even-handed approach, it runs afoul of the First Amendment.

In November, for example, a general district judge in Richmond, Va., struck down a city ordinance that bans music or television noise that can be heard from a neighbor’s home or 50 feet away. The ordinance was constitutionally flawed because it made an exception for religious music.

In May, the 2nd District Court of Appeal in Lakeland, Fla., declared the state’s noise law unconstitutional because it made exceptions, including for the playing of political messages.

In order to be upheld, a law has to set clear and readily measured standards for enforcement and must treat all noise sources the same way.

Those are significant hurdles, but appropriate ones. Depending on the setting, horn-honking and drumbeating can be free speech. With valid and evenly applied statutes, governments can curb cacophony, but not content.