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VIEWPOINT

FIRST AMENDMENT RIGHTS AND FIRST AMENDMENT

September 2007

Americans’ rights under the First Amendment to the Constitution, and particularly the right to free speech, are among our most cherished. Indeed, what is said in this very newspaper is published under the rights guaranteed under the First Amendment.

However, in an era when everyone seems to be hypersensitive about their right to do just about anything, few talk about the other half of the rights equation: exercising those rights responsibly.

Speech rights under the First Amendment, while widespread, have never been absolute. There is no “right” to lie, nor libel or slander someone. You have no “right” to call someone a racial epithet, nor to use sexually explicit language in certain settings. A classic U.S. Supreme Court case noted that no one has the right to yell “Fire!” in a crowded theater, knowing that there is no fire, just to create a panic among the patrons.

Over the years governments have fashioned time, place and manner regulations on speech and expression in an effort to balance these rights with the countervailing rights to privacy. As long as these regulations are not unduly burdensome, they have withstood judicial scrutiny.

Political speech is afforded the highest level of protection, as we agree that open and vigorous debate on the issues of the day is essential for a functioning democracy. But even here, political speech protections are not without limits. For example, no one would tolerate a candidate for elective office driving through a residential neighborhood at 3 a.m. in a sound truck, with loudspeakers blaring a call to “Vote for Me.”

The Emeryville City Council recently heard a report on the City’s Noise Ordinance, and considered the issue of “amplified sound,” meaning the use of bullhorns, microphones, loudspeakers or other similar devices for public expression. The current City ordinance limits the use of such devices to 7 a.m. – 9 p.m. on weekdays, and 8 a.m. – 9 p.m. on weekends. Recent protests in Emeryville – and complaints about these protests – prompted the Council to consider reducing, but not banning, the hours when amplified sound can be used.

In Emeryville, contractors are required to post large signs around construction sites with a clearly displayed phone number where residents can call with noise complaints. Under certain conditions, a single resident can shut down a multimillion dollar project that has gone through every phase of the planning process and has been approved by the Planning Commission and City Council with a single phone call. Emeryville’s permitting process is structured this way to protect the quality of life of residents disturbed by construction noise.

Yet, these same residents are powerless when political speech disturbs their quality of life. There is no “one-stop” phone number to register a complaint about excessively noisy political protests. At best, a call to the police will draw a cautious response, as officers are loath to disturb political protests unless the protestors are patently violating the parameters of the Noise Ordinance.

If Emeryville can empower any resident – regardless of how sensitive he or she may be to construction noise – to stop a multimillion dollar project dead in its tracks over quality of life concerns, why can we not do the same for intrusive and excessive political noise? The answer is that the City can do this – sort of. While political speech does, and should, enjoy a much higher level of protection than commercial speech or construction noise, slightly scaling back the time when amplified sound can be used for political speech would seem to us to be a reasonable step the Council could take to balance the quality of life interests of residents and others with rights of demonstrators. We call on the City Council to give serious consideration to everyone’s rights by narrowing the time window when amplified sound devices can be used in Emeryville.