United States District Court, N.D. New York
August 10, 2004.
KEVIN DEEGAN, Plaintiff,
CITY OF ITHACA, MARIETTE GELDENHUYS, in her official capacity as City Attorney for the City of Ithaca, and RICHARD BASILE, in his official Capacity as Chief of Police of the City of Ithaca, Defendants.
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
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 Ithaca Commons or elsewhere in the City. The ordinance
restricts only volume and does not restrict content of speech.
The parties refer to two sections of the City local law of the
City. One reads in part:
§ 157-18. Amplified sound.
A. Except by special permit . . . no person shall
operate or cause to be operated on the Ithaca Commons
any boom box, tape recorder, radio or other device
for electronic sound amplification in a loud,
annoying or offensive manner such that noise from the
device interferes with conversation or with the
comfort, repose, health or safety of others within
any building or at a distance of 25 feet or greater.
The other section, pertaining to the City of Ithaca in general,
provides: § 240-4. Unreasonable noise prohibited.
A. No person shall intentionally cause public
inconvenience, annoyance or alarm or recklessly
create a risk thereof by making unreasonable noise or
by causing unreasonable noise to be made.
B. For the purpose of implementing and enforcing the
standard set forth in Subsection A of this section,
"unreasonable noise" shall mean any sound created or
caused to be created by any person which either
annoys, disturbs, injures or endangers the comfort,
repose, health, peace or safety of the public or
which causes injury to animal life or damages to
property or business. Factors to be considered in
determining whether unreasonable noise exists in a
given situation include but are not limited to any or
all of the following:
(1) The intensity of the noise.
(2) Whether the nature of the noise is usual or
(3) Whether the origin of the noise is associated
with nature or humanmade activity.
(4) The intensity of the background noise, if any.
(5) The proximity of the noise to sleeping
(6) The nature and the zoning district of the area
within which the noise emanates and of the area
within 500 feet of the source of the sound.
(7) The time of the day or night the noise occurs.
(8) The time duration of the noise.
(9) Whether the sound source is temporary.
(10) Whether the noise is continuous or impulsive.
(11) The volume of the noise.
(12) The existence of complaints concerning the noise
from persons living or working in different places or
premises who are affected by the noise.
The parties have stipulated that the city construes and enforces
these two provisions of the noise ordinance as prohibiting all noise that can be heard 25
For purposes of this case, Thomas S. Katra qualifies as an
expert in the area of noise and noise measurements. Katra
testified that he visited Ithaca Commons for the purpose of
measuring and judging the impact of the 25-foot noise restriction
on Ithaca Commons in the area where plaintiff had been preaching.
Using an "integrating sound level meter," Katra made sound level
measurements at the same time of day on the same day of the week
as the incident in issue, although in February instead of
Katra described his methods and concluded that 56 decibels was
the maximum noise level at which a person could speak and still
be in compliance with the ordinance 50 percent of the time. He
stated that this decibel level is lower than that generated by
the clicking of high-heeled boots, conversations between two or
three people, a shop door opening and closing, a small child
playing on a playground and a cellular telephone. He further
stated that "most normal human activity would be clearly audible
at a distance of 25 feet." When asked if plaintiff's "mode of
communication, that being preaching, [can] comply with the
25-foot restriction," he replied: "Not at the environment that
existed . . . the day I was there, which I assume was typical."
He added that "you could not hold a spirited conversation between
two people and not violate that restriction." He also stated that
the restriction is "incompatible" with Ithaca Commons.
On cross-examination, Katra stated that he did not know how
many people had been in "close proximity" (six to eight feet) of
plaintiff while plaintiff was preaching and that he had not
measured the decibel level of plaintiff's preaching. He agreed
that the duration of a loud sound is an important factor in whether it is annoying or
alarming and that factors such as annoyance and alarm cannot be
The Court adopts Katra's factual findings but not his opinions.
Therefore, the Court finds that Katra made his measurements in
February at the same place and time of day as the October 9, 1999
incident in issue; that 56 decibels was the maximum noise level
at which a person could speak and still be in compliance with the
ordinance 50 percent of the time; that this decibel level is
lower than that generated by the clicking of high-heeled boots,
conversations between two or three people, a shop door opening
and closing, a small child playing on a playground and a cellular
telephone; that most normal human activity would be clearly
audible at a distance of 25 feet; and that a spirited
conversation between two people would be clearly audible at a
distance of 25 feet. The Court further finds that there is no
evidence regarding how many people were in "close proximity" (six
to eight feet) of plaintiff while he was preaching; that Katra
did not measure the decibel level of plaintiff's preaching; that
the duration of a loud sound is an important factor in whether it
is annoying or alarming; and that factors such as annoyance and
alarm cannot be scientifically measured.
The Court rejects as irrelevant Katra's opinion that under the
conditions at Ithaca Commons plaintiff's "mode of communication,
that being preaching, [cannot] comply with the 25-foot
restriction." This opinion begs the question, because it is
apparently based on the stipulated definition of "preaching" as
"speech that can be heard beyond twenty-five feet." In other
words, plaintiff defines "preaching" as speech which is heard
beyond 25 feet and then states the obvious conclusion that
"preaching" cannot comply with the 25-foot restriction. However,
proof that plaintiff cannot "preach" is not proof that he cannot
reasonably make his message heard. There is no evidence that in order for plaintiff
to communicate his religious message in a reasonable manner to a
reasonable number of people, his speech must be heard at a
distance of 25 feet or more.
The Court also rejects Katra's opinion that the ordinance is
"incompatible" with Ithaca Commons. Katra does not explain the
basis for this opinion, nor does he explain the meaning he
ascribes to the word "incompatible." In any event,
"compatibility" is not in issue here.
Noise regulation generally
Public fora such as streets and parks "have immemorially been
held in trust for the use of the public, and, time out of mind,
have been used for purposes of assembly, communicating thoughts
between citizens, and discussing public questions." Perry Educ.
Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983)
(citation and internal quotation marks omitted). Even in a public
forum, however, the government may impose reasonable restrictions
on the time, place, or manner of protected speech, provided that
(1) the restrictions are content-neutral, that is, they are
justified without reference to the content of the regulated
speech; (2) they are narrowly tailored to serve a significant
governmental interest; and (3) they leave open ample alternative
channels for communication of the information. See Ward v. Rock
Against Racism, 491 U.S. 781, 791 (1989).
A speech regulation is content-neutral if it is "justified
without reference to the content of the regulated speech," that
is, if it "serves purposes unrelated to the content of
expression, . . . even if it has an incidental effect on some
speakers or messages but not others." Id. The City's noise ordinance is not explicitly content-based. Moreover,
it serves a legitimate governmental purpose unrelated to the
content of expression, that is, protecting people in the City
from excessive noise. See generally Ward, 491 U.S. at 792.
A regulation which is not overtly content-based, however, may
nevertheless be invalid if it "places unbridled discretion in the
hands of city officials charged with enforcing it[,]" id. at
793, thus permitting arbitrary and potentially content-based
enforcement. See Turley v. Police Dep't of the City of New
York, 167 F.3d 757, 761-62 (2d Cir. 2000). In addressing such a
claim, courts examine (1) the text of the ordinance, (2) any
binding judicial or administrative construction of it (there is
none here), and (3) the municipality's established practice in
interpreting it, that is, whether the municipality has
interpreted the ordinance in such a manner as to provide
additional guidance to the officials charged with its
enforcement. See Ward, 491 U.S. at 795-96; Turley, 167 F.3d
Plaintiff contended on previous motions that the ordinance
improperly permits arbitrary, content-based enforcement. The
parties have now stipulated that the city construes and enforces
the noise ordinance, specifically sections 240-4 and 157-18, as
prohibiting any noise that can be heard 25 feet away. The 25-foot
restriction does not permit arbitrary, content-based enforcement.
Therefore, in view of the text of the ordinance and
municipality's established practice in interpreting it, plaintiff
has not demonstrated that the ordinance is not content-neutral.
A regulation of the time, place, or manner of protected speech
"must be narrowly tailored to serve the government's legitimate,
content-neutral interests but . . . it need not be the least restrictive or least intrusive means of doing so." Ward,
491 U.S. at 798. The requirement of narrow tailoring is satisfied
so long as the regulation "promotes a substantial government
interest that would be achieved less effectively absent the
regulation.'" Id. at 799 (citation and quotation marks
omitted). The government may not, however, regulate expression
"in such a manner that a substantial portion of the burden on
speech does not serve to advance its goals." Id.
There is no doubt that, even in a traditional public forum such
as Ithaca Commons, the City has "a substantial interest in
protecting its citizens from unwelcome noise." Id. at 796
(quoting City Council of Los Angeles v. Taxpayers for Vincent,
466 U.S. 789, 806 (1984)). The issue, then, is whether the noise
ordinance "burden[s] substantially more speech than is necessary
to further the government's legitimate interests." Id. at 799.
In support of his contention that the noise ordinance burdens
substantially more speech than is necessary to advance the City's
interest in preventing excessive noise in Ithaca Commons,
plaintiff asserted that the 25-foot restriction prevented his
message from being heard and understood by passersby. He further
averred that the ordinance was so restrictive that "normal human
activities" typical to Ithaca Commons constitute violations.
The record does not support a finding that the noise
restriction places a significant burden on protected speech.
There is no showing that compliant speech can not be heard and
understood by a reasonable number of people. Plaintiff presents
no evidence that in order for passersby to hear and understand
his religious message, his speech must be heard at a distance of
25 feet or more; indeed, inasmuch as the streets in Ithaca
Commons are 66 feet wide, it would seem that compliant speech
would be heard by a significant proportion of people in the area. Certainly plaintiff is not entitled to have his speech
heard by everyone.
Nor does the record support a finding that the City's goal of
avoiding excessive noise could be met by a less burdensome
restriction. Plaintiff relies on proof that normal human activity
in the area such as a door closing or a "spirited" conversation
exceed the 25-foot limit. This proof, however, does not mean that
the 25-foot restriction is overbroad. The fact that occasional,
intermittent or impulsive sounds occasionally exceed the
restriction is not evidence that the restriction is overly
burdensome. Nor is it evidence that continuous and persistent
preaching at the same volume as such occasional sounds would not
be excessive noise.
Plaintiff has failed to show that the ordinance burdens
substantially more speech than is necessary to further the city's
legitimate interest in prohibiting excessive noise. Thus, he has
not shown that the ordinance is not narrowly tailored to serve
the City's legitimate, content-neutral interests.
Alternative channels for communication
Plaintiff also argued that the ordinance effectively prohibits
him from preaching and fails to leave open ample alternative
avenues of communication. This argument is based on the
assumption that the ordinance prevents him from preaching in a
voice loud enough to make his message heard, an assumption not
established on this record. Stated differently, plaintiff has not
shown that he could not communicate his message in a manner which
would be in compliance with the ordinance, for example, by
speaking at a lower volume.
Finally, plaintiff argued that the noise ordinance was so
restrictive that everyday activities typical to Ithaca Commons constitute violations and
that therefore it is necessarily selectively enforced. To make
out an equal protection claim, plaintiff must show that he has
been intentionally treated differently from others similarly
situated and that there is no rational basis for the difference
in treatment. See Village of Willowbrook v. Olech,
528 U.S. 562, 564 (2000).
The parties stipulated that at the time in question, plaintiff
observed others in the area who could be heard 25 feet away,
including people talking from beyond 25 feet away and a singing
group of about ten women about 200 feet away, and that everyone
other than plaintiff and his companions was left undisturbed.
These facts, without more, are insufficient to meet plaintiff's
burden of showing that he was similarly situated to the singers
or the others. For example, the singers may have had a permit, or
the sounds of conversation may have been transient as groups
walked through Ithaca Commons. Likewise, plaintiff has not shown
that there is no rational basis for the difference in treatment.
Plaintiff has not established a claim of selective enforcement.
Upon review of the record submitted to the Court for
determination of this action, the Court holds that plaintiff has
not carried his burden of demonstrating that he is entitled to
relief on any theory. He has not established that the ordinance
violates the First Amendment requirements of content-neutrality,
narrow tailoring, or alternative channels of communication. Nor
has he shown that the ordinance was selectively enforced against
him in violation of the Equal Protection clause. There is no
other basis for relief on this record. Accordingly, it is ORDERED that the action is dismissed in its entirety with
IT IS SO ORDERED.
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