The City of Madison appeals from an order dismissing citations issued by a city police officer to Richard E. Baumann and David E. Matthews for violating the city's anti-noise ordinance, sec. 24.04(1), Madison General Ordinances, by playing musical instruments and singing on State Street. Section 24.04(1) provides:
The defendants do not claim that the noise they are alleged to have made could not be prevented or was necessary.
The circuit court found that sec. 24.04(1), MGO, is unconstitutionally vague and overbroad. We conclude that sec. 24.04(1) is not overbroad. However, we conclude that the ordinance is unconstitutionally vague. We affirm the circuit court's order.
The facts are stipulated.
State Street is a mall on which all vehicular traffic except buses, bicycles, taxis, delivery vehicles and emergency vehicles is prohibited. The buildings adjoining State Street combine commercial and residential uses. Many buildings have ground-level business tenants and upper-level residential tenants.
The city's policy has been to encourage the use of State Street as an area in which people may not only do business but may repair for recreation and entertainment. The city permits and regulates the vending of food and crafts on the street, expends money to subsidize artistic performances, employs several persons to clean and maintain the area, levies special assessments on adjoining properties for the street's upkeep as a pedestrain mall, and decorates the street with lights and banners
Defendants are professional musicians who for at least three years prior to this action have performed as street musicians or minstrels on State Street at various times of the year, at hours ranging from 10:00 a.m. to 1:00 a.m.
At or about 11:22 p.m. on June 12, 1986, defendant Baumann was playing a violin and defendant Matthews a guitar in a small paved area on the north side of State Street, between the sidewalk and a small park known as Peace Park. At least one of the defendants was singing. Neither defendant was using amplification equipment. A resident of a second-story apartment across the street heard defendants' music. He called city police. From a building across the street, he and a police officer observed and heard defendants' musical performance. The police officer did not use any sound measuring device to determine the sound level of the defendants' music. After listening to the defendants' performance, the police officer issued each of them a citation for violating sec. 24.04(1), MGO.
The courts have not always made a clear distinction between the doctrines of overbreadth and vagueness. See cases collected in Annotation, Supreme Court's Views as to Overbreadth of Legislation in Connection with First
The distinction between overbreadth and vagueness is illustrated in Talley v. California, 362 U.S. 60 (1960), where the Court declared void on its face a City of Los Angeles ordinance forbidding the distribution of handbills which did not contain the names and addresses of the printer and the distributor. The city urged that the ordinance was aimed at identifying those responsible for fraud, false advertising and libel. The court held, however, that the ordinance was too broad in that the identification requirement might deter perfectly peaceful discussions of public matters of importance. Id. at 65. See also Zwickler v. Koota, 389 U.S. 241 (1967) (penal law banning distribution of election handbills without identification of printer and distributor). Thus, regulation may be overbroad if it clearly and precisely includes the defendant's conduct but also includes conduct which the state may not proscribe.
The Wisconsin Supreme Court in State v. Princess Cinema of Milwaukee, 96 Wis.2d 646, 292 N.W.2d 807 (1980), explained the distinction between an overbroad statute and a vague statute. Princess Cinema involved a criminal obscenity statute, sec. 944.21(1)(a), Stats. (1977). The court said that an overbroad statute "is one that is designed to burden or punish activities which are
We therefore conclude that sec. 24.04(1), MGO, is not unconstitutionally overbroad.
VAGUENESS: FIRST AMENDMENT CONSIDERATIONS
We take into account that sec. 24.04(1), MGO, "abut[s] upon sensitive areas of basic First Amendment freedoms," Grayned, 408 U.S. at 109 (quoting Baggett v. Bullitt, 377 U.S. 360, 372 (1964)), and "operates to inhibit the exercise of [those] freedoms." Id. (quoting Cramp v. Board of Public Instruction, 368 U.S. 278, 287
"[S]tandards of permissible statutory vagueness are strict in the area of free expression." N.A.A.C.P. v. Button, 371 U.S. 415, 432 (1963). "Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms." Id. at 438.
"If . . . the law interferes with the right of free speech or of association, a more stringent vagueness test should apply." Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 499 (1982) (footnote omitted). The possible chilling effect of a vague statute or ordinance touching on free speech requires that, upon review, such regulation be subjected to heightened scrutiny.
Hynes v. Mayor of Oradell, 425 U.S. 610, 620 (1976).
Although sometimes onerous and frustrating to those charged with municipal administration, the protections of the United States Constitution represent checks on governmental authority which must be preserved
We also take into account the unique nature of State Street. The city has chosen to devote State Street to uses which emphasize public discussion and communication, and peaceable assembly; uses firmly protected by the first amendment. "Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens." Hague v. Committee For Industrial Organization, 307 U.S. 496, 515 (1939).
VAGUENESS: WISCONSIN CASE LAW
This is a case of first impression in Wisconsin.
In State v. Givens, 28 Wis.2d 109, 135 N.W.2d 780, (1965), State v. Zwicker, 41 Wis.2d 497, 164 N.W.2d 512, appeal dismissed, 396 U.S. 26 (1969), and Zwicker v. Boll, 270 F.Supp. 131 (1967), aff'd per curiam, 391 U.S. 353 (1968), the courts sustained Wisconsin's disorderly conduct statute, sec. 947.01, Stats., against vagueness challenges.
Section 947.01, Stats. (1967), provided:
This statute differs significantly from sec. 24.04(1), MGO, in that it proscribes unreasonably loud conduct as disorderly conduct only if, under the circumstances, the conduct tends to cause or provoke a disturbance. Rockford's anti-noise ordinance survived a vagueness challenge because it was interpreted to prohibit only "actual or imminent" interference with the peace and good order of a school. Grayned, 408 U.S. at 111-12.
In State v. Migliorino, 150 Wis.2d 513, 442 N.W.2d 36, cert. den., 107 L. Ed. 2d 560 (1989), the court upheld the criminal trespass to a medical facility statute, sec. 943.145. Stats. Section 943.145(2) provides:
The city argues that the circuit court's requirement of specificity is contrary to Milwaukee v. K.F., 145 Wis.2d 24, 33, 426 N.W.2d 329, 333 (1988). In K.F., the court concluded that the appellants lacked standing to challenge the vagueness of the city's curfew ordinance because the ordinance, as applied to them, clearly proscribed their conduct. Id. at 39, 426 N.W.2d at 335-36. K.F. is therefore inapposite because the city does not claim that the defendants do not have standing to challenge sec. 24.04(1), MGO, as being void for vagueness.
VAGUENESS: NOISE REGULATION
Noise regulation poses special problems of draftsmanship and enforcement. People v. New York Trap Rock Corp., 442 N.E.2d 1222, 1226 (N.Y. 1982). "The
There are two circumstances in which a broadly stated noise prohibition may withstand a vagueness challenge: the regulation applies within a limited context which conveys an accepted or well-understood meaning of otherwise imprecise words, Trap Rock Corp., 442 N.E.2d at 1226, or, the prohibition is narrowed by qualifying language, or by judicial construction, see, e.g., Grayned, 408 U.S. at 111-12 (court assumed that state court would interpret "diversion tending to disturb the peace" to prohibit only actual or imminent interference with peace or good order).
Statutes or ordinances banning noise as "loud," "excessive," "unusual," "unnecessary" or in similar words or expressions of general import, have been upheld if applied within a clearly recognized limited context. In Kovacs v. Cooper, 336 U.S. 77 (1949), the Court sustained an ordinance which prohibited the use upon a motor vehicle of any instrument emitting "loud and raucous noises." The court was careful to point out that the ordinance did not restrict the communication of ideas or discussion of issues by the human voice. Kovacs at 89. See also People v. Byron, 215 N.E.2d 345 (N.Y. 1966) (excessive or unusual "noise" emanating from a vehicle muffler); State v. Dorsett, 164 S.E.2d 607, (N.C. App. 1968) ("unreasonably loud, disturbing and unnecessary noise" created by a motorcycle); Town of Islip v. Vollbracht's Dairy, Inc., 363 N.Y.S.2d 307, 308 (N.Y. D. Ct. 1975) (air conditioning apparatus creating "unreasonable or unnecessary noise of . . . unreasonable extent and duration"); Weil v. McClough, 618 F.Supp. 1294 (D.C.N.Y. 1985) (ordinance prohibiting honking of
In Grayned, the Court sustained the city's ordinance against a vagueness attack, although it conceded that the question was "close." 408 U.S. at 109. The Court indicated that it was troubled by the "imprecision" of the phrase "tends to disturb." Id. at 111. The Court concluded, however, that the Illinois Supreme Court would interpret the Rockford ordinance to prohibit only actual or imminent interference with the peace or good order of the school. The court said that "[g]iven this `particular context,' the ordinance gives `fair notice to those to whom [it] is directed.'" Id. at 112 (quoting American Communications Asso. v. Douds, 339 U.S. 382, 412 (1950)). The court said that the ordinance forbade the noisy or diversionary activity at fixed times—when school is in session—and at a sufficiently fixed place—"adjacent" to the school. 408 U.S. at 111. The vagueness of `noises' and `diversions' "is dispelled by the ordinance's requirements that (1) the `noise or diversion' be actually incompatible with normal school activities; (2) there be a demonstrated causality between the disruption that occurs and the `noise or diversion'; and (3) the acts be `willfully' done." Grayned, 408 U.S. 113-14 (footnotes omitted). In contrast, the proscription of sec. 24.04(1), MGO—"making any noise tending to unreasonably disturb the peace and quiet of persons in the vicinity thereof"—is not placed within " `boundaries sufficiently distinct' for citizens, policemen, juries and appellate judges." Grayned, 408 U.S. at 114 (footnote omitted).
In Mann v. Mack, 202 Cal.Rptr. 296 (Cal. Ct. App. 1984), the court approved a Los Angeles ordinance which made it unlawful for any person "to willfully make . . . any loud, unnecessary, and unusual noise which disturbs the peace or quiet of any neighborhood or which causes discomfort or annoyance to any reasonable person of normal sensitiveness residing in the area." Without analysis, the court relied on the cases we have discussed making the limited context distinction. These cases, therefore, do not support the court's conclusion.
The city and the dissent rely on Cameron v. Johnson, 390 U.S. 611, 616 (1968), in which Justice Brennan stated that the word "unreasonably" is "a widely used and well understood word." Here, the trial court distinguished the statute involved in Cameron from sec. 24.04(1), MGO, on the grounds that the word "unreasonably" in the city's ordinance lacks "contextual salvation." We agree. We place Cameron in that class of cases where vague words of general important are saved by their contextual surroundings. The statute involved in Cameron prohibited "picketing . . . in such a manner as to obstruct or unreasonably interfere with free ingress or egress to or from any . . . county . . . courthouses. . .." Id. The thrust of the statute was directed at interference with free ingress or egress to and from a courthouse. What constituted interference with ingress or egress to and from a public building was within the knowledge of any person of common intelligence reading the statute. The word "unreasonably" added little, if anything, to the prohibition of the statute, but, because of the context in which the word was used it likewise did not destroy the statute.
Likewise, the word "unreasonably" in sec. 947.01, Stats., adds little to the definition of disorderly conduct, but it does not destroy the statute because it is in a context which gives it shape and form. The second element of the offense of disorderly conduct is that "the conduct of the defendant, under the circumstances as they then existed, tended to cause or provoke a disturbance." Wis. JI—Criminal 1900. In contrast, a person may be guilty of violating sec. 24.04(1), MGO, if any person in the vicinity of the noise is "unreasonably" disturbed thereby irrespective of whether, under the circumstances,
Section 24.04(1) MGO, has the potential to apply to the speech of others the personal tastes and biases of the listener. The first amendment forbids the government to ban speech. What government cannot do directly it cannot do in the guise of a statute or ordinance so vague that its application has no discernible boundaries.
APPLICATION OF PRINCIPLES TO SECTION 24.04(1), MGO
Section sec. 24.04(1), MGO, provides that "[n]o person shall make or assist in making any noise tending to unreasonably disturb the peace and quiet of persons in the vicinity thereof. . .." The ordinance is not written specifically for any context, as was Rockford's anti-noise ordinance, which was written specifically for the school context, Grayned, 408 U.S. at 112; we have a vague, general "breach of the peace" ordinance, id.
Nor does sec. 24.04(1), MGO, forbid deliberately noisy activity at "fixed times," at a "fixed place," Grayned, 408 U.S. at 111.
The ordinance does not proscribe only noise tending to cause or provoke an immediate or "imminent threat of violence," Grayned, 408 U.S. at 111, or public disturbance. These defendants could not know in advance whether their speech would disturb the peace and quiet of persons in the vicinity; nor can others who use State
We therefore conclude that sec. 24.04(1), MGO, does not place noise within boundaries sufficiently distinct for citizens, police officers, juries, and appellate judges to determine what conduct it proscribes. Section 24.04(1) is unconstitutionally vague.
By the Court.—Order affirmed.
EICH, C.J. (dissenting).
Baumann's "vagueness" challenge to the ordinance, in its entirety, is that because the ordinance contains no "time, place and manner" restrictions, its "lack of specificity" impermissibly delegates to Madison police officers "discretion in choosing whom to prosecute for . . . violating the ordinance."
The majority has ruled in Baumann's favor and in doing so: (1) holds that the presumption of constitutionality usually accompanying legislative acts does not attach to the Madison ordinance because of its infringement on the exercise of First Amendment rights, and, as a result, the city has the burden of establishing that the ordinance does not violate the constitution; (2) rejects the principle that whether a given noise disturbs the public peace depends upon the circumstances of the particular case; and (3) appears to hold that, to survive a constitutional challenge, an anti-noise ordinance must be (a) "written specifically for [a particular] context," majority op. at 405, (b) limited in its applicability to "fixed times" and "fixed place[s]," id., (c) proscribing only noises "tending to cause or provoke an immediate or `imminent threat of violence' . . . or public disturbance," id., and (d) drawn so that users of a public street
I am unable to join in that opinion because the City of Madison has satisfied me that the ordinance is not so vague that one can only guess at its meaning.
A statute or an ordinance is unconstitutionally vague only if persons of ordinary intelligence must necessarily guess as to its meaning and differ as to its applicability. State v. Zwicker, 41 Wis.2d 497, 507, 164 N.W.2d 512, 517, appeal dismissed, 396 U.S. 26 (1969). We do not, however, impose impossible standards of specificity, Jordan v. De George, 341 U.S. 223, 231 (1951), and laws will not be struck down simply by a showing that the boundaries of the area of proscribed conduct are somewhat hazy. Milwaukee v. K.F., 145 Wis.2d 24, 33, 426 N.W.2d 329, 333 (1988). A fair degree of definiteness is all that is required. Id. Finally I note that, to a degree at least, vagueness is more tolerable in a civil law than in laws with criminal sanctions. This is so because the consequences of imprecision are less severe in the former case. Brockert v. Skornicka, 711 F.2d 1376, 1381 (7th Cir. 1983).
The Madison ordinance prohibits persons from making, or assisting in the making of, noise of such a nature as "to unreasonably disturb the peace and quiet of persons in the vicinity thereof," unless the noise cannot be prevented and is necessary to protect property, health or safety. It appears in a chapter of the Madison General Ordinances entitled "OFFENSES AGAINST PEACE AND QUIET," and I see little difference between the conduct it proscribes and that proscribed by the statute upheld in Zwicker, which punished—as a crime —"unreasonably loud . . . conduct under circumstances
Like the criminal statute
The majority quotes George Gershwin. Majority op. at 395 n.2. While my own admiration for Gershwin's music is, I am sure, no less than that of the author of the majority opinion, I believe it is entirely possible that even a Gershwin melody, played at such ear-splitting levels as to unreasonably disturb the peace, might well constitute the type of "noise" that the city may reasonably regulate.
The Madison ordinance does not regulate the nature or content of music or any other protected form of "speech." It reaches only noise that unreasonably disturbs another's peace and quiet; and in my opinion it does so under standards that are sufficiently specific to survive Baumann's constitutional challenge.
I disagree with Baumann's assumption, apparently adopted by the majority, that the word "unreasonably" is a term so vague that one must necessarily guess at its meaning. Instead, I agree with Justice Brennan who, writing for the Court in Cameron v. Johnson, 390 U.S. 611,
In Grayned v. City of Rockford, 408 U.S. 104 (1972), the Court upheld a Rockford, Illinois, noise ordinance prohibiting people from "willfully mak[ing] or assist[ing] in the making of any noise or diversion" adjacent to school grounds "which disturbs or tends to disturb the peace or good order of such school session or class thereof. . .." Id. at 107-08. Noting that because we are "[c]ondemned to the use of words, we can never expect mathematical certainty from our language," the Court concluded that the ordinance was not unconstitutionally vague. Id. at 110. As the majority opinion in this case notes, the Grayned Court dispelled its initial concern over the possible vagueness of the terms "noise" and "diversion" by noting that not all noises and diversions were prohibited by the Rockford ordinance, but only those that were (a) willfully done, (b) actually incompatible with school activities, and (c) caused a disruption of those activities. Id. at 113-14.
So, too, the Madison ordinance does not prohibit all noise—or music—that someone might consider annoying.
I would hold, therefore, that the Madison ordinance, like Rockford's, "does not permit people to `stand on a public sidewalk . . . only at the whim of [a] police officer,'" Grayned at 114, quoting Shuttlesworth v. Birmingham, 382 U.S. 87, 90 (1965); rather, there must be a demonstrated intentional and unreasonable disturbance of the peace and quiet of persons in the vicinity in order for the prohibition to apply. It is true in this case, as it was in Grayned:
The constitution does not insist upon the impossible; it asks only what the subject will reasonably permit. In my opinion, the Madison ordinance is not unconstitutional per se.
It is, on its face, a constitutionally valid approach to an invasive noise problem that can be attested to by any walker of the city's streets. Whether, in a particular case,