|Legal Opinion: |
Text of Document: August 15, 1996
You have the following question: Is the city's noise ordinance "vague." The answer is yes, but a significant number of "vague" ordinances similar to the city's ordinance have been upheld. However, Sections 18-1(3), (7), (8) and (9), probably violate the Free Speech Clause of the First Amendment to the U.S. Constitution. Content neutral time, place and manner restrictions on speech are generally legal, but those sections fail one or more of those tests. [See Ward v. Rock Against Racism, 109 S.Ct. 2746 (1989); Metromedia. Inc. v. City of San Diego, 453 U.S. 490 (1981).] Those sections also fail because they are inconsistent with the purpose of the ordinance. [See H.L. Messengers, Inc. v. City of Brentwood, 577 S.W.2d 444 (1979).] With respect to content neutrality, Section 18-1(3) discriminates against commercial speech, and expression other than public speech (music and singing); Section 18-1(7) restricts the use of drums for the purpose of attaching attention by noise to any performance, show or sale, which restriction does not apply to the use of drums to attract attention for other purposes; and Sections 18-1(8) and (9) discriminate against commercial speech. With respect to the inconsistency of those section with the purpose of the ordinance, certain kinds of noise created by certain methods are restricted by the ordinance, while certain kinds of noise created by the same methods are permitted, which defeats the ostensible purpose of the ordinance.
Many cities have noise ordinances that contain "objective" noise standards expressed in decibels, and that require enforcement through the use of sound meters. However, a significant number of recent subjective and "vague" noise ordinances have been upheld.
For example in City of Madison v. Baumann, 445 N.W.2d 647 (Wis. Ct. App. 1990), a Madison, Wisconsin's noise ordinance provided that:
No person shall make or assist in making any noise tending to unreasonably disturb the peace and quiet of persons in the vicinity thereof unless the making and continuing of he same cannot be prevented and is necessary for the protection and preservation of property or of the health, safety, life or limb of some person. [My emphasis.]
The Wisconsin Supreme Court overturned the Wisconsin Court of Appeals decision that the ordinance was unconstitutionally vague, reasoning that the word "reasonably" in the ordinance saved it from vagueness, and gave the police officer notice as to what kind of conduct, and at what hour, place and other circumstances, a violation of the ordinance would occur.
Also see Galbraith, Milton A. Jr., Noise Ordinances: What Kind of Noise Annoys, Municipal Attorney (date and volume unknown, but 1992 or later), in which are discussed 15 cases involving non-objective noise standards, generally based on the "reasonableness" standard. I have read most of those cases, and many of them reflect ordinances at least as "vague" as your city's noise ordinance. [Also see the Annotation, "Validity Under Federal Constitution, of Federal, State or Local Anti-Noise Laws and Regulations." 26 L.2d 2d 1042.] Unfortunately, as you might expect, the cases cited in that annotation, go both ways. However, the ones upheld by the courts also appear to contain subjective standards similar to your city's noise ordinance, and the weight of authority appears to me to support such regulations. However, as far as I can determine no Tennessee case has been litigated in this area. The same appears to be true with respect to the U.S. Sixth Circuit.
I have enclosed a number of "model" noise ordinances based on objective decibel measurements if you decide to go that route. However, if the First Amendment Free Speech problems are corrected in the city's ordinance, in theory it might withstand challenge. You might consider adding the "unreasonable" in section 18-2, so that the section reads: "It shall be unlawful for any person to make, continue or cause to be made or continued any unreasonable loud or unnecessary or unusual noise...."
If you need some help on any of this, let me know.
Sidney D. Hemsley
Senior Law Consultant