The opinion of the court was delivered by: NORMAN MORDUE, District Judge
MEMORANDUM-DECISION AND ORDER
In this action, plaintiff challenges the noise ordinance
applicable to the Ithaca Commons area in the City of Ithaca
("City"). Plaintiff claims that he has been prevented from
preaching his religious beliefs in Ithaca Commons because the
City's noise ordinance, as interpreted by defendants, prohibits
all speech which can be heard 25 feet away. The single cause of
action asserts that defendants' conduct violated plaintiff's
federal constitutional rights to equal protection and freedom of speech, religion, association
and assembly. Plaintiff seeks declaratory relief, injunctive
relief and compensatory damages.
The Court assumes that the reader is familiar with the history
of the action and the contents of the February 28, 2001
Memorandum-Decision and Order denying plaintiff's motion for a
preliminary injunction, and the June 18, 2003 Memorandum-Decision
and Order denying the parties' motion and cross motion for
summary judgment.
Presently before the Court is the "Parties' Joint Stipulation
of Facts" ("Stipulation") and the transcript of the sworn
testimony of Thomas S. Katra, taken outside the presence of the
Court on January 13, 2003. The parties stipulate that the
Stipulation and the transcript shall serve as the entire trial
record, and they submit the case to the Court for final
determination. For the reasons set forth below, the Court
dismisses the action.
The Court incorporates by reference the Stipulation and the
transcript of Katra's testimony. The facts in the stipulation
constitute findings by the Court as do the facts (but not the
opinions) in Katra's testimony. Based on these two documents, the
Court sets forth the following summary of the facts upon which it
bases its legal determinations.
Facts drawn from Stipulation
As a tenet of his Christian faith, plaintiff believes it to be
his religious duty to preach publicly about Christianity.
"Preaching" involves speaking in public locations in a raised
voice that can be heard beyond 25 feet. Plaintiff believes that
preaching enables him to express his religious views, to attract
the attention of his intended audience and to communicate his
message to as many people as possible. He further believes that
preaching enables him to associate with others who share similar religious
views, to counsel others concerning his faith and otherwise to
engage in religious activities.
On October 9, 1999, plaintiff and three companions went to
Ithaca Commons and began preaching. Ithaca Commons is a two-block
T-shaped area in the City in which the streets have been closed
to vehicular traffic and converted into a pedestrian mall. Both
streets in Ithaca Commons are approximately 66 feet wide. Ithaca
Commons is a public forum.
City Police Officer Gregory Firman, in response to a telephone
complaint from an employee of a store in Ithaca Commons,
approached plaintiff and his companions and told them that the
City noise ordinance prohibited speech that could be heard 25
feet away. He told them that their speech violated the ordinance
and directed them to comply with the 25foot limitation.
Plaintiff asked to see the noise ordinance, and Officer Firman
left to obtain a copy. After Officer Firman left, plaintiff began
to speak at a lower volume in an attempt to comply with the
ordinance. During this time, plaintiff noticed others in the area
who could be heard 25 feet away, including people conversing more
than 25 feet away and a singing group of about ten women about
200 feet away. No police officer approached anyone other than
plaintiff and his companions. There were no complaints about
anyone but plaintiff.
When Officer Firman returned after about ten minutes, he
noticed that the volume of plaintiff's speech was lower but still
in violation of the ordinance. Officer Firman characterized
plaintiff as speaking at the "top of his lungs" persistently and
continuously. Officer Firman told plaintiff that if he did not
reduce his volume to a level that could not be heard at 25 feet,
he would face arrest. Plaintiff and this companions left the
City. Plaintiff feels that he cannot communicate effectively if he
cannot be heard from a distance of 25 feet and that therefore
compliance with the ordinance "would effectively eliminate his
speech efforts." As a result of the City's refusal to allow him
to speak at a volume that could be heard from 25 feet away,
plaintiff did not again attempt to preach in Ithaca Commons for
fear of arrest. Plaintiff has never used the alternatives of
applying for a permit to use amplified sound, speaking in a lower
tone of voice so as not to be heard from the distance of 25 feet,
or passing out brochures.
The City is concerned with the comfort, repose, health and
safety of everyone in the City. The City, the City Attorney and
the City police department interpret, construe, and enforce the
City noise ordinances, specifically sections 240-4 and 157-18, to
prohibit any noise that can be heard 25 feet away. The
prohibition applies to any type of noise, including speech,
whether the noise is amplified or unamplified and whether it
occurs in ...