Appeals Court Sides With Activist In Challenge Over City’s Bullhorn Restrictions

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The California case concerns whether local permitting requirements for using megaphones and other sound amplification equipment infringe on free speech.

An animal rights activist suing a California city over its restrictions on the use of bullhorns in public spaces scored a win in federal appeals court this week, but the case is not over yet.

Joseph Cuviello wanted to use a megaphone while protesting alleged animal mistreatment at a Six Flags amusement park in the Bay Area city of Vallejo. The city, however, has an ordinance that requires people to obtain a permit before using “sound amplifying” devices. 

Vallejo has argued that its requirements help to prevent noise that would disturb the public peace or create traffic hazards.

Cuviello filed a lawsuit in federal district court in 2016 claiming the permitting ordinance violated his free speech rights under both the U.S. Constitution and the California state constitution.

He sought a preliminary injunction in 2017 to block the enforcement of the permitting requirement—a request the court denied. 

But a 9th U.S. Circuit Court of Appeals panel issued a ruling on Tuesday reversing the denial and sending the case back to the lower court for further proceedings.

The appeals court decision explains that courts have recognized previously that “unrestrained use” of all types of sound equipment around a city would be intolerable and that localities have an interest in protecting their citizens from “unwelcome noise.”

But these concerns have to be balanced with free speech considerations.

Permit requirements for speaking out in public can discourage people who fear retaliation in advance for what they might say, or can stifle spontaneous speech, Judge Richard Paez noted in the court’s opinion.

“Permit systems represent a departure from our tradition of public discourse by requiring a citizen to seek approval from the government to engage in speech,” the judge wrote.

He added that Cuviello, “has shown that the City’s permit requirement violated and continues to infringe on his free speech rights.”

Paez’s opinion also points out that bullhorns and other sound amplification equipment are afforded legal protections as “indispensable instruments” of public speech.

For a permit system like the one facing scrutiny in the case to pass constitutional muster, the judge explained that it has to satisfy four main criteria.

One is that it can’t give “overly broad licensing discretion” to government officials. Second, the system cannot be based on the content of speech. Third, it must be “narrowly tailored to serve a significant governmental interest.” Lastly, it has to leave open “ample alternatives” for communication.

For a number of reasons, the appeals court in this case zeros in on the third prong of this legal standard.

The opinion concludes that the city has a justifiable interest in regulating excessive noise to protect the public from related health and safety hazards. 

But Paez wrote that it isn’t clear that the ordinance is narrowly tailored, noting that it requires a permit for any person to use amplifying equipment, at any volume, at any location, “without any specifications or limitations.” 

He adds that the permitting requirement would apply with the same force for an individual or a group, in a noisy park, or at a demonstration near a hospital in the middle of the night. 

“Without any limitations that tailor the permit requirement to circumstances where public peace and traffic safety are actually at risk,” the judge writes, the ordinance “covers substantially more speech than necessary to achieve its ends.”

Paez went on to call into question whether Cuviello’s use of a bullhorn, on a busy sidewalk next to an amusement park, would cause that much of a disturbance amid the other sounds there. 

Vallejo amended its permitting ordinance since the case began.

In revamping the local law, the city did away with a fee requirement for the permits and also struck language that prohibited people from using megaphones and other similar devices to deliver profane, lewd or slanderous speech.

The appeals court opinion said that the revisions to the law did not render the case “moot.”

Cuviello waited about one year after a police officer threatened to confiscate his bullhorn before filing his lawsuit and roughly five more months before seeking the preliminary injunction.

Judge Gary Feinerman, who delivered a dissenting opinion, said this time lag was an indication that Cuviello wasn’t suffering irreparable harm under the permitting regime, and that he therefore wasn’t entitled to the legal relief the preliminary injunction would provide.

Bill Lucia is a Senior Reporter for Route Fifty and is based in Olympia, Washington.

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