Sounds Like Trouble

As Spokane City Council pushes a new noise ordinance to a vote on May 14th, the Center for Justice and Gonzaga University Law School’s legal clinic warn about its consequences.

The Center for Justice and Gonzaga University Law School’s University Legal Assistance program are registering several sharp concerns about a proposed new  noise ordinance that is slated to be taken up by the Spokane City Council on Monday night, May 14th.

A lengthy critique of the proposed ordinance was included in a joint letter sent last month to new City Attorney Nancy Isserlis. In their critique, CFJ and GU ULA attorneys characterized the new ordinance as “confusing at best and unconstitutionally vague at worse.”

Spokane street musicians Lucas "Bodhi Drip" Brown, and Rick "Harpman Hatter" Bocook performing together earlier this year.

The letter raised concerns not only about how the new ordinance would likely infringe upon the constitutional rights of street musicians and others, but how enforcement of the ordinance will inevitably put Spokane police officers in heated and difficult situations as they try to figure out whether, or not, the ordinance is being violated.

“We know that getting to clear and objective standards on public noise regulation is difficult,” says CFJ executive director Rick Eichstaedt. “But this ordinance is strikingly sloppy, disorganized and confusing.”

Although some parts of the draft ordinance have been modified since the Center and GU ULA sent their critique, Eichstaedt says the problems with the confusing and vague language remain.

According to CFJ attorney Julie Schaffer, the proposed ordinance is at its most confusing in the section where it tries to define what is and isn’t “public disturbance noise.”

For example, Schaffer notes, a key paragraph purports to list “sounds” that constitute “public disturbance noises” but rather than listing sounds, lists circumstances in which persons or performers create sound and lists criteria for determining a violation that apply to some, but not all, of the examples.

“For street musicians and others wishing to exercise their rights to public expression,” Schaffer says, “it’s impossible under the confused terms of this ordinance to make a meaningful sound and know when you’re violating the ordinance and when you’re not. The effect of this confusion is to chill constitutionally protected expression and speech.”

The proposed ordinance is so confusing, CFJ and ULA wrote to Isserlis, “that it would place an undue burden upon street musicians (and other expressive noise-makers) to discern whether they are violating the law. This burden extends to the City police officers who will be asked to enforce an ordinance with ambiguous and insufficient guidance.”

“Confidence in the City’s police department is arguably at an all time low,” the letter to Isserlis opines, “and it cannot possibly be improved by injecting officers into polarized and highly visible situations where, with little concrete guidance, they have to discern what is constitutionally protected expression and what is a public disturbance noise that requires them to intervene.”

In an appendix to the April 17th letter, ULA provides a detailed appendix illustrating just how confusing enforcement of the proposed new ordinance would be from the standpoint of a Spokane police officer asked to enforce it.

The letter also addresses questions about the timing of the ordinance (the city’s existing noise ordinance is barely two years old, and there’s no analysis by the city to indicate why it’s not working, or why it needs replacing), and objects to an inference in the ordinance’s preamble that University Legal Assistance supports the proposed new ordinance because it served on a task force that worked on noise regulation issues.

“University Legal Assistance did have a representative on the task force formed by the City,” the April 17th letter notes. “However, University Legal Assistance did not endorse the proposed ordinance, but instead expressed its opposition to adopting an ordinance that shifts away from the objective sound measurement standards of the current ordinance.”

The existing ordinance prohibits enforcement actions against “constitutionally protected expressive activities” unless the activities result in noise levels that exceed ambient noise levels by decibel levels defined in the current ordinance. Thus, enforcement requires decibel meters that would not be required to enforce the proposed new ordinance.

 

–Tim Connor for the Center for Justice

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