DC’s new noise ordinance is not just bad policy; it is unconstitutional

By Mark Stern (Georgetown 2013)

Yesterday’s articles by Scott Stirrett of DC Students Speak and Jack Appelbaum of the Georgetown Progressive on the District’s new noise violation ordinances pointed out many valid concerns with the law, but did not go so far as to label it unconstitutional. I will. The law, titled the Disorderly Conduct Amendment Act of 2010, has two specific provisions that directly violate the constitution. These are found in Sec. 3, Section 211, subsections (b) and (d). To ascertain their constitutionality, I recently spoke with a senior constitutional law professor.

The provision of the law that most directly affects students is subsection (d), which states that “It is unlawful for a person to make an unreasonably loud noise between 10:00 PM and 7:00 AM that is likely to annoy or disturb one or more other persons in their residences.” While noise violations have been routinely enforced through citations and fines in the past by MPD, this new ordinance enhances the criminality of noise violations and calls for immediate arrest of the violator. “Vagueness is an obvious problem here,” my source noted immediately. “What does it mean to ‘annoy or disturb’? A better law would note a flat decibel level, but this leaves it entirely open to officers’ interpretation.”

I had to wonder: is that unconstitutional? “The 1972 decision of Grayned v. City of Rockford is the main Supreme Court precedent,” said the professor. “It outlines two ‘vices of vague statutes’ that could render the statutes unconstitutional: insufficient lack of notice, and an excessive amount of discretion given to police officers for selective enforcement. The District’s new ordinance appears to suffer from both of these vices. It’s the picture of vagueness and over-breadth.”

More recently, the 1999 case City of Chicago v. Morales dealt with a similar issue of vagueness, with the court ruling that a law “so vague and standardless that it leaves the public uncertain as to the conduct it prohibits” is unconstitutional. Tracing the issue further back, the 1971 case Coates v. Cincinnati overturned a law prohibiting certain forms of assembly, claiming it violated due process for being “unconstitutionally vague,” “unconstitutionally broad,” and giving law enforcement far too much discretion. The new ordinance violates constitutionally-established due process for the same reasons: the definition of “an unreasonably loud noise... likely to disturb or annoy” someone is astonishingly vague, leaving the matter entirely up to the discretion of law enforcement. “There are constitutionally sound methods of keeping the peace,” my source noted, “but this isn’t one of them.”

The second troublesome provision, Sec. 3, Section 211, subsection (b), deals with First Amendment rights. It reads as follows: “It is unlawful for a person to engage in loud, threatening, or abusive language, or disruptive conduct, with the intent and effect of impeding or disrupting the orderly conduct of a lawful public gathering, or of a congregation of people engaged in any religious service or in worship, a funeral, or similar proceeding.”

“It would be difficult to pack more constitutional issues more economically into one provision,” my source noted. “The specific inclusion of religion immediately signals content discrimination. Larkin v. Grendel’s Den explicitly states that to allow religious entities to decide what other privateparties can and cannot do is a violation of the Establishment clause.”

Can peace be enforced at respectable gatherings at all, then? “Certainly neutral restrictions could apply here--say, not allowing any activity within so many feet of a funeral for so many hours,” the professor said. “Time, place, and manner restrictions are constitutionally sound. But this is not a neutral principle in the slightest. Moreover, what counts as a religious service? Could you or I go out on the street, claim to be having a religious service, then call for the arrest of anyone who yells at us?”

But Establishment Clause trouble is the not the only issue here. “Like the noise violation ordinance, we’re facing a problem of vagueness and over-breadth.” My source cited Gooding v. Wilson, a 1972 Supreme Court case which struck down as over-broad a law that banned “abusive words or opprobrious language.”

“The Court has been very clear on this matter. An ordinance like [the District’s new law] is highly unlikely to pass constitutional muster. It may have good intentions, but it’s an infringement upon the rights of the citizens of Washington.”

With one fell swoop, the DC City Council has managed to violate due process, free speech, and the Establishment Clause. It should seriously consider revoking or revising the unconstitutional Disorderly Conduct Amendment Act of 2010, lest the courts do the Council’s work for it.

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