A Very Broad Reading of the First Amendment

endnearThe Tennnessean runs a curious editorial this morning arguing that a noise ordinance citation slapped by the city of Franklin on street preacher John McGlone amounts to an infringement of First Amendment rights. McGlone was ticketed last April for doing his preaching with a mic and amplifier in violation of Franklin’s noise ordinance (contained in a municipal code section charmingly titled “Offenses Against the Peace and Quiet”).

The editorial is curious because it seems so patently misguided on the law. I’m as much of a free speech fan as the next person, but it is well-settled First Amendment law that government can regulate the time, place, and manner of expressive activity on public property. Laws or regulations that do restrict speech have to advance an important governmental interest, and must do so in a narrowly drawn way that allows alternative means of communication. It is well understood that limiting sound amplification qualifies (see, for instance, the 1989 Supreme Court case Ward v. Rock Against Racism), as long as the rules aren’t written in such a way as to penalize a particular viewpoint or stifle more expression than necessary.

In the Franklin case, McGlone was doing his thing during Franklin’s Main Street Festival near the Public Square. The noise ordinance says that “when a special event permit has been obtained from the City of Franklin, no other amplification of sound will be permitted within the area of the special event except that which has been applied for and authorized by the city pursuant to the permit application.” So when a festival vendor complained about McGlone’s amplified activity, the preacher was issued a ticket for an ordinance violation.

It is perfectly reasonable, practically and constitutionally, for municipalities to regulate with a permit process the use of amplified sound in public spaces. Cities can run afoul of constitutionality if they make the obstacles for obtaining a permit onerous, or are too restrictive in framing the circumstances in which amplified speech is permit-eligible. Franklin’s ordinance doesn’t arouse concern on either of these dimensions, even if there are other elements of the law that seem bizarrely specific (for instance, the actions “declared to be loud, disturbing and unnecessary” include “the blowing of any locomotive steam whistle or steam whistle attached to any stationary boiler except to give notice of the time to begin or stop work or as a warning of fire or danger”).

Bottom line: A rule saying that the authorized amplified sound within a permitted special event is the only amplification allowed within the area of that event offends neither common sense nor the First Amendment. As long as the Main Street Festival permit didn’t cover (and therefore restrict expressive activity within) an unjustifiably large area of the city center, it’s hard to see how McGlone has a case, nor how The Tennessean fathoms a free speech infringement. And even if the permit did reach too broadly in defining the festival’s footprint, there is still the city’s legitimate ability to regulate sound amplification on public sidewalks.

A version of this post appears on the Nashville Scene‘s Pith in the Wind blog.


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