Make a Joyful Noise

I was in court recently and observed a young adult pleading guilty to a noise violation. The police claimed that the sound system in his car was illegally loud “because it could be heard outside the car.” I wanted to jump up and tell the fellow to plead not guilty. He had a First Amendment right to play his music loudly. The police were in the wrong.

This is the season of driving around with the windows and moonroofs open, listening to music. Almost any driver is liable to get a ticket for excessive noise, if the test for a violation is that the music “could be heard outside the car.” Cops frequently use streets where young people cruise for fundraising, handing out tickets as fast as they can write.

Some city ordinances recite a decibel level above which the noise is “excessive.” In many cases, the police use uncalibrated sound level meters, lack training or understanding of what they are measuring, or are basing the violation on an invalid criterion because there are different decibel measurements. The dB meter may not be measuring the sound characteristic specified in the ordinance.

It would be possible for a car sound system to produce so much noise that a city could outlaw it, but that would require sound production on the level of the amplifiers found at dB drag races, up to 180 dB. By comparison, 140 dB is the pain threshold and 150 dB is the sound of a jet engine 100′ away. The vehicles are barely drivable due to the weight and volume of the amplifiers and batteries. There is never an occupant when the sound is measured because to be in the vehicle would result in serious injury. No car driving around would have the sound capacity to injure bystanders, which should be the threshold for a noise violation. A more restrictive definition would violate the right of free speech.

In cities in the United States, one occasionally starts to both hear and feel a vibration from an approaching car. When the car is close, the subwoofers can feel like a Magic Fingers® massage. Many other drivers and pedestrians find this irritating, but the offending driver has the right to be irritating. The First Amendment is specifically aimed at protecting the right to be irritating. Inoffensive speech needs no protection.

If irritation could be banned, Terry Jones of the Christian Dove World Outreach Center or Fred Phelps of the Westboro Baptist Church are far more irritating than a booming subwoofer on Woodward Avenue in Harper Woods, Michigan. The person blasting music from his or her car is making a statement that is at least as valid as a homophobic sermon disrupting a funeral or a political rant from a soapbox. The statement may be antisocial, but it is far better to be antisocial with a boombox than with a MAC-10.

A test for enforcement of First Amendment freedom of expression is whether the restriction is content-based. An important feature of most municipal excessive noise enforcement is that drivers are ticketed for loud music while church bells and motorcycles that are louder are permitted. Certainly a motorcycle can be heard “outside the vehicle” and many churches have carillons that are louder than any vehicle on the road. The church carillons along Michigan Avenue in Dearborn can be heard much farther away than any vehicle on the street. Permitting bells on churches but ticketing cars for playing hip-hop at a far lower dB level is clearly based on the message.

People given tickets for excessive noise should start to push back and defend themselves. These tickets violate the First Amendment. Defendants should request representation by an attorney and contest the charges. If counsel is not provided because the violations are minor, the defendant can and should self-represent. The explanation above will give the defendant the arguments that should be made to the court against an excessive noise ticket. Even if the judge does not find in the defendant’s favor, the judge will be likely impose a lower fine because they know their ordinance is on shaky constitutional grounds. If the defendant is polite and respectful and remembers to address the judge as “Your Honor,” he or she will almost certainly be treated with respect and fairness. Usually a First Amendment defense will succeed in an excessive noise case. The Constitution still trumps local ordinances.

 

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
law-business.com
 
©2011 John B. Payne, Attorney
 
 
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