VIRGNIA: IN THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH

CHRISTOPHER FEENEY, ) RYAN FEENEY, ) and JACOB AMUIAL, )

) Complainants, )

) v. ) CHANCERY NO.: CH03-3636

) CITY OF VIRGINIA BEACH, )

) Respondent. )

MEMORANDUM OF AMICI CURIAE AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA, INC. AND THE THOMAS JEFFERSON CENTER FOR THE PROTECTION

OF FREE EXPRESSION OPPOSITION TO RESPONDENT'S DEMURRER

Amici American Civil Liberties Union ofVirginia, Inc. and The Thomas Jefferson

Center for the Protection ofFree Expression, by counsel, submit this Brief in opposition to the

Respondent's demurrer.

INTEREST OF AMICI

The American Civil Liberties Union of Virginia is a state affiliate of the American

CiviI Liberties Union, a nationwide, nonprofit, nonpartisan organization dedicated to the

principles ofliberty and equality embodied in the Constitution. The ACLU ofVirginia has

over 6000 members in the Commonwealth of Virginia, and appears frequently in Virginia's

state and federal courts, both as amicus and directly representing parties. Among the principles

the ACLU of Virginia most strongly defends are the rights to freedom of speech and due

process of law enshrined in the Virginia and United States Constitutions.

The Thomas Jefferson Center for the Protection of Free Expression is a nonprofit,

nonpartisan organization located in Charlottesville, Virginia. The Center has as its sole

mission the protection of freedom of speech and press from threats of all forms. The Center

pursues that mission through research, educational programs, and intervention on behalf of the

right of free expression. Since its founding in 1990, the Center has filed briefs as amicus

curiae in numerous state and federal court cases that raised important free expression issues.

STATEMENT OF FACTS

For purposes of the demurrer, all material facts properly pleaded are accepted as true.

See, e.g., Didato v. Strehler, 262 Va. 617, 620, 554 S.E.2d 42, 43 (2001). Those facts, briefly

summarized, are as follows:

The complainants herein are the owners and managers of a Virginia Beach restaurant

and nightspot located on Atlantic A venue known as Lagoon. Featured music at Lagoon is

most often of the type known as "hip-hop" and "urban." The managers of Lagoon, Christopher

and Ryan Feeney have been charged multiple times under Virginia Beach's noise ordinance,

§23-47 of the City of Virginia Beach Code of Ordinances (hereinafter, the "noise ordinance" or

the "Virginia Beach noise ordinance"). The Virginia Beach police have repeatedly threatened

and warned all of the complainants with additional charges.

Although it regularly enforces the noise ordinance against Lagoon, the City itself

sponsors and promotes events that are often much noisier. The City-sponsored program called

Beach Street USA consists oflive entertainment along the oceanfront area. The police do not

require the Beach Street USA concerts to comply with the noise ordinance. The City also

allows other music and events to take place in the oceanfront area and does not enforce the

noise ordinance against them.

ARGUMENT

This brief address two defects in the Virginia Beach noise ordinance. First, on its face,

the ordinance is unconstitutionally vague. Second, the facts alleged in the Bill of Complaint

demonstrate that the ordinance is unconstitutionally applied. Therefore, Respondent's

Demurrer should be denied.

1. THE VIRGINIA BEACH NOISE ORDINANCE IS UNCONSTITUTIONALL Y VAGUE ON ITS FACE.

A law is unconstitutionally vague if "men of ordinary intelligence must necessarily

guess at its meaning." Hynes v. Mayor o/Oradell, 425 U.S. 610, 622 (1976) (quoting

Connally v. General Constr. Co., 269 U.S. 385, 391 (1926»).1 Vague laws violate the due

process clause of the Fourteenth Amendment. Smith v. Goguen, 415 U.S. 566, 574 (1974). In

general, the danger of vague laws is twofold: First, they fail to give citizens reasonable notice

ofwhat conduct is prohibited, and thus "trap the innocent by not providing fair warning."

Second, they vest unfettered discretion in the police, giving rise to a likelihood of arbitrary

enforcement. Grayned v. City 0/Rockford, 408 U.S. 104, 108-09 (1972); Papachristou v. City

ofJacksonville, 405 U.S. 156, 162 (1972); Kolender v. Lawson, 461 U.S. 352, 357 (1983).

Accordingly, Virginia courts have employed a "two pronged test" in evaluating vagueness

challenges: "First, the language of the statute must provide a person of average intelligence a

reasonable opportunity to know what the law expects from him or her. Second, the language

1 Although this particular case and several others cited in this brief were concerned with the U.S. Constitution and not the Virginia Constitution, the distinction is irrelevant. Virginia courts "have consistently held that the protections afforded under the Virginia Constitution are co-extensive with those in the United States Constitution." Bennefield v. Commonwealth, 21 Va. App. 729, 739-40, 467 S.E.2d 306, 311 (1996). Indeed, in the context of free speech, the Virginia Supreme Court has held "the Constitution of Virginia is broader than that of the U.S. in providing that - 'any citizen may freely speak, write and publish his sentiments on all subjects." Robert v. City ofNorfolk, 188 Va. 413, 420, 49 S.E.2d 697, 700 (1948) (quoting VA Const. Art I, s 12.).

--- -- -- -----------~-----~

must not encourage arbitrary and discriminatory selective enforcement of the statute." Gray v.

Commonwealth, 30 Va. App. 725, 732, 519 S.E.2d 825, 828 (1999). See also Commonwealth

v. Carter, 21 Va. App. 150, 153-54,462 S.E.2d 582, 584 (1995); Coleman v. City oJRichmond,

5 Va. App. 459, 466, 364 S.E.2d 239, 243 (1988), reh 'g denied, 6 Va. App. 296, 368 S.E.2d

298 (1988).

The dangers of lack of notice and arbitrary enforcement are amplified when the statute

regulates speech. "Where a vague statute abuts upon sensitive areas of basic First Amendment

freedoms, it operates to inhibit the exercise of those freedoms." Grayned, 408 U.S. at 109

(citations and internal quotations omitted). See also Us. Labor Party v. Pomerleau, 557 F.2d

410,412 (4th Cir. 1977) ("The principal vice ofa vague or overbroad ordinance regulating

street sounds is its deterrence of constitutionally protected speech"). Thus, "stricter standards

ofpermissible statutory vagueness may be applied to a statute having a potentially inhibiting

effect on speech; a man may the less be required to act at his peril here, because the free

dissemination of ideas may be the loser." Hynes, 425 U.S. at 620; See also Smith v. Goguen,

415 U.S. 566, 573 (1974) ("Where a statute's literal scope, unaided by a narrowing state court

interpretation, is capable of reaching expression sheltered by the First Amendment, the

doctrine demands a greater degree of specificity than in other contexts); Jackson v. w., 14 Va.

App. 391, 403, 419 S.E.2d 385,392 (1992) ("[I]fa law interferes with the right of free speech

or of association, a more stringent vagueness test should applY." (quoting Village ojHoffman

Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489,498 (1982».

The Virginia Beach City Code § 23-47 prohibits noise that is "unreasonably loud,

disturbing and unnecessary." This language is unconstitutionally vague. To begin with, the

word "necessary" is inherently subjective, absent any explication of the purpose for which the

noise must be "necessary." Courts in other states have repeatedly found that the word

"unnecessary" renders noise ordinances unconstitutionally vague.2 These courts have

recognized that "[t]he adjective[] 'unnecessary' modifying the noun 'noises' [is] inherently

vague and elastic and require[s] men of common intelligence to guess at [its] meaning."

Nichols, 589 So.2d at 1283.

The word "unnecessary" is also vague because it does not provide standards to

constrain the discretion of police and prosecutors, and thus encourages arbitrary enforcement.

"Ifbeauty is in the eye of the beholder, whether a noise is 'unnecessary' ... certainly depends

upon the ear of the listener. A statue is unconstitutionally vague when the standard of conduct

it specifies is dependent upon the individualized sensitivity ofeach complainant." Id. at 1284.

In People v. Geel, the Court, following the Court of Appeals in New York Trap Rock, held that

without an objective standard to detemline if a noise is actually against the law, it did not

matter ifit was considered raucous or unnecessary. 690 N.Y.S. 2d 827,828 (N.Y. Misc.,

2 See, e.g., Dupres v. City ofNewport, 978 F.Supp. 429 (D.R.I. 1997) (striking on vagueness grounds ordinance proscribing "any unreasonably loud, disturbing, or unnecessary noise; or ... any noise of such character, intensity, or duration as to be detrimental to the life, health or welfare of any individual, or which either steadily or intermittently annoys, disturbs, injures or endangers the comfort, repose, peace or safety of any individual"); Nichols v. City ofGulfport, 589 So. 2d 1280 (Miss. 1991) ("unnecessary or unusual noises ... which either annoys, injures or endangers the comfort, repose, health or safety of others ... "); Fratiello v. Mancuso, 653 F. Supp. 775 (D.R.I. 1987) ("unnecessary noises or sounds ... which are physically annoying to persons, or which are so harsh, or so prolonged or unnatural, or unusual in their use, time and place as to occasion physical discomfort, or which are injurious to the lives, health, peace and comfort of the inhabitants of the city"); People v. New York Trap Rock Corp., 442 N.E.2d 1222 (N.Y. 1982) ("unnecessary noise," defined as any "excessive or unusually loud sound, or any sound which either annoys, disturbs, injures or endangers the comfort, repose, health, peace or safety of a person."); Phillips v.Borough ofFolcroft, 305 F. Supp. 766 (E.D. Pa. 1969) ("the making of loud andlor unnecessary noises"). See also Jim Crockett Promotion, Inc. v. City of Charlotte, 706 F.2d 486,489 (lh Cir. 1983) (holding the word "unnecessary," as used in a noise ordinance unconstitutionally vague, but finding that it could be severed from the rest of the ordinance.) Accord City ofColumbus v. Kasper, 573 N.E.2d 1163 (Ohio 1989) (Sound amplification must not "be greater than reasonably required to be plainly audible throughout the area of [a] lawful voluntary assemblage").

1999). A more scientific standard was needed to determine whether the noise violated the

statute. !d.

Furthermore, such a statute "subordinates the exercise of First Amendment freedoms to

a police officer's entirely subjective determination of whether an actor's speech is

'unnecessary' .... The grant of such unbridled discretion invites the suppression of ideas."

Fratiello, 653 F. Supp. at 790.

The word "unnecessary" also gives police impermissible license to single out particular

ideas for punishment. For example, in Phillips, which dealt with the use of a sound truck to

speak on political issues, the court noted:

[T]he real vice of this language is that it permits police and other officials to wield apparently unlimited discretionary powers in choosing those persons in violation of the ordinance. It would have been possible under a different reading of the ordinance for a police officer to have decided to arrest Mrs. Phillips after concluding that it was not necessary to have a noncandidate such as Mrs. Phillips use a sound truck, which made a lot of noise, speak about election issues -- that it was only "necessary" to have political candidates make noise about such issues. This is clearly an impermissible judgment under the First Amendment.

305 F. Supp. at 771. Thus, "(b ]ecause a violation depends on the subjective opinion of the

investigator, the speaker has no protection against arbitrary enforcement of the ordinance."

Pomerleau, 557 F.2d at 412. See also Coates v. City o/Cincinnati, 402 U.S. 611, 614 (1971)

(Statute that prohibits "annoying" conduct is unconstitutionally vague; the city may not

regulate conduct "through the enactment and enforcement of an ordinance whose violation

may entirely depend on whether or not a policeman is annoyed").

Moreover, the list of examples of "unreasonably loud, disturbing, and unnecessary"

noises in § 23-47 does not save the statute from vagueness. This illustrative, but non-

exclusive list provides neither a definition of "unreasonably loud, disturbing and unnecessary,"

nor an explanation of the criteria for determining that a sound is "unreasonably loud, disturbing

and unnecessary." Although the enumerated examples provide a certain degree of notice as to

what conduct is prohibited, such notice extends only to person engaging in the precise conduct

listed. The list of examples gives no notice as to which conduct outside the examples might be

"unreasonably loud, disturbing, and unnecessary."

Nor is this a case in which a time and place limitation gives the ordinance sufficient

specificity. In Grayned v. City ofRockford, 408 U.S. 104 (1972), the Supreme Court upheld an

ordinance providing that "no person, while on public or private grounds adjacent to any

building in which a school or any class thereof is in session, shall willfully make or assist in the

making of any noise or diversion which disturbs or tends to disturb the peace or good order of

such school session or class thereof ...." 408 US. at 107-08. Calling it a "close" question, id.

at 109, the Court found that in light of the declared purpose of the statute, "protection of

schools," and the fixed time and place limitations, the ordinance provided notice of the specific

conduct prohibited. Id. at 110-11. The vagueness of the terms "noises" and "diversions,"

which might otherwise invalidate the statute, was "dispelled by the ordinance's requirements

that (1) the 'noise or diversion' be actually incompatible with normal school activity; (2) there

be a demonstrated causality between the disruption that occurs and the 'noise or diversion' and

(3) that the acts be 'willfully' done." 110-11. ld. at 113-14. In contrast, the Virginia Beach

noise ordinance prohibits "unreasonably loud, disturbing and unnecessary noises" at all times

and all places throughout the city. Unlike the Grayned ordinance, there is no limiting context

that narrows the scope of the ordinance.

In sum, the Virginia Beach noise ordinance is unconstitutional because it uses vague,

subjective terms to describe the prohibited conduct. It does not give individuals notice as to

what is prohibited, nor does it provide guidelines to constrain the discretion of the police.

Moreover, the vagueness is exacerbated because the noise ordinance directly affects speech

and other expressive activities.

II. THE BILL OF COMPLAINT ADEQUATELY PLEADS AN "AS-APPLIED" CHALLENGE TO RESPONDENT'S ENFORCEMENT OF VIRGINIA BEACH ORDINANCE § 23-47.

Contrary to Respondent's assertions in the demurrer (see Dem. ~ 3), the Bill of

Complaint clearly and sufficiently sets forth factual allegations that Virginia Beach Ordinance

§ 23-47 is being....eenstitMti@ftelly applied in an unconstitutional manner.

An "as-applied" challenge to a governmental action does not call into question the

terms ofthe statute, ordinance, or policy. Rather, the question centers on whether the

government is applying the statute, ordinance, or policy in a consistent and content-neutral

manner. "Of course even content-neutral time, place, and manner restrictions can be applied in

such a manner as to stifle free expression." Thomas v. Chicago Park District, 534 U.S. 316,

323 (2002); see also Forsyth County v. Nationalist Movement, 505 U.S. 123, 131 (1992). The

risk of unconstitutional application is especially great when enforcement officials enjoy unduly

broad discretion in determining the circumstances in which the law applies. Forsyth, 505 U.S.

at 133. In Saia v. New York, 335 U.S. 558 (1948), the Court emphasized the peril inherent in

the application of a noise ordinance to speech--the possibility that "annoyance at ideas can be

cloaked in annoyance at sound." 335 U.S. at 562; accord, Us. Labor Party v. Pomerleau, 557

F.2d 410, 412 (4th Cir. 1977). When the government's enforcement ofa facially content-neutral

law is motivated by a purpose to single out constitutionally protected speech for penalty, such

action is unconstitutionaL See Tinker v. Des Moines Ind. Sch. Dist., 393 U.S. 503,512­

13(1969).

In its demurrer, Respondent argues that the Bill ofComplaint does not sufficiently

plead that the § 23-47 is being applied in an unconstitutional manner. (Dem. ~ 3). In

determining whether to overrule or grant the demurrer, a court need only decide whether the

facts thus pleaded and fairly inferred are legally sufficient to state a cause of action. Thompson

ex rei. Thompson v. Skate Am., Inc., 261 Va. 121, 127,540 S.E.2d 123, 126-27 (2001). In

making this decision, a court is not charged with evaluating the merits ofthe allegations set

forth in the bill of complaint, but whether the factual allegations of the bill of complaint are

sufficient to state a cause of action. Riverview Farm Assocs. v. Ed. ofSupervisors ofCharles

City County, 259 Va. 419, 427, 528 S.E.2d 99, 106 (2000). Further, a court may consider only

those grounds stated specifically in the demurrer. Va. Code Ann. § 8.01-273 (A).

Six sentences contained in paragraph 3 of the Demurrer exclusively detail Respondent's

argument that the Bill ofComplaint fails to adequately plead an as-applied challenge. A line-

by-line examination of this paragraph demonstrates that Respondent's claim is smoke without

any fire.

The allegations in Part F ofthe Complaint relating to musical and other events sponsored by the City fail to support a that the City has applied the ordinance in a content-based manner. (Dem. ~ 3, line 1.)

This assertion is merely the conclusion of law that the Respondent urges this Court to

make and does not substantively address the question of the sufficiency of the Bill of

Complaint's as-applied allegation. It is therefore of no use to this Court in determining the

merits of the demurrer.

There is no nexus between the fact that the City has not sponsored or permitted others to sponsor "urban" or "hip hop" concerts at City stages and the enforcement ofthe Noise Ordinance. (Dem. ~ 3, line 1.)

As noted above, the Bill ofComplaint does not have to prove a nexus to withstand a

demurrer but only has to allege such a nexus. The mere fact that Respondent claims that there

is no "nexus" does not make it so, nor does it mean that one has not properly been alleged.

Included in paragraphs 14 through 22 of the Bill of Complaint are the allegations that "City

officials and agents have acknowledged that ... [§ 23-47] is applied in a content-based manner"

(CompI. , 14), "[t]he City controls, regulates and censors the content of music played on the

stages and on the streets ... " (CompL '15), the "hip hop" and "urbanll music played by

Complainants "is not solicited, promoted or permitted by the City ... [on City stages]" (CompI.

,-,r 16-17) (emphasis added), and n[e]ven though the subject noise ordinance does not make

exceptions for outdoor concerts, performances or events such as those performed on ... [City

stages] ... , law enforcement officials in Virginia Beach do not require that these performers and

entertainers comply with the noise ordinance, but they do enforce the noise ordinance against

the complainants" ( Compl. ,18). Given these claims, it is difficult to see how Respondent

can assert that the facts pleaded, "and all reasonable inferences that can be drawn from such

facts," (Thompson, 261 Va. at 127,540 S.E.2d at 126-27), do not sufficiently allege a

connection between City permitted events and enforcement of § 23-47.

There is no allegation that the City has not taken enforcement action against other private establishments playing other music types at similar noise levels. (Dem. '3, line 3).

This assertion is simply incorrect. The Bill of Complaint states, "Ironically, the noisy

events and music permitted and/or promoted by the City are often--if not usually--much louder

than any music which escapes from the inside of ... [Complainants place of business]." (Comp.

P. 21) (emphasis added). The term "and/or" in the foregoing allegation dictates that the words

"permitted" and "promoted" are to be taken together and separately. Music that is pem1itted

but not promoted by the City can only refer to music that is not City sponsored, i.e. music from

private venues and establishments. Use of the term "ironically" logically and clearly implies

inconsistent enforcement of § 23-47 against other types of music played at similar or louder

noise levels. Any other interpretation of the allegation would not convey a proper use of the

term "ironically." Moreover, in order to withstand the demurrer, it is not necessary that the Bill

ofComplaint include an allegation that the City does not enforce § 23-47 against other private

establishments playing a different type of music at similar noise levels. The Bill of Complaint

explicitly alleges that the City does not enforce § 23-47 against City sponsored events (Compi.

~ 18); that claim alone is sufficient to allege an unconstitutional application.

Nothing in the Ordinance prohibits or unduly restricts the Complainants' ability to play "urban" or "hip hop" music in their establishment for the entertainment oftheir customers. The [OJrdinance does, however, by its terms, reasonably require that Complainants play any music they select at such volume and under such conditions and at such times so as not to disturb those persons who chose not to be patrons ofthe Complainants' establishment. (Dem. ~ 3, lines 4 and 5).

Both ofthese sentences speak to whether--as a legal conclusion--§ 23-47 is content-

neutral on its face. As such, they are ilTelevant to this Court's determination of whether the

Bill of Complaint properly alleges § 23-47 is being applied in a content-based and

unconstitutional manner.

Accordingly, the Complaint fails to allege any facts upon which the Court could conclude that the Noise Ordinance has been applied in a content-based manner in violation ofthe Complainants right tofree speech. (Dem. ~ 3, line 6).

As detailed above, the Bill of Complaint includes numerous factual allegations to

support a finding that § 23-47 has been unconstitutionally applied to Complainant. Thus, the

demurrer to the as-applied allegation ends as it began-with the legal conclusion that

Respondent hopes this Court will make but with no underlying facts to sustain that conclusion.

CONCLUSION

The Bill of Complaint alleges serious constitutional deficiencies in the Virginia Beach

noise ordinance. The ordinance is unconstitutionally vague on its face, and the facts as alleged

in the Complaint indicate that it is unconstitutionally applied as well. Amici respectfully urge

that the Demurrer be denied.

Respectfully submitted,

AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA, INC.

THE THOMAS JEFFERSON CENTER FOR THE PROTECTION OF FREE EXPRESSION

Rebecca K. Glenberg (VSB #44099) American Civil Liberties Union of Virginia Foundation, Inc. 6 North Sixth Street, Suite 400 Richmond, Virginia 23219 (804) 644-8080

J. Joshua Wheeler (VSB # 36934) Robert M. O'NeiL The Thomas Jefferson Center for the Protection ofFree Expression 400 Peter Jefferson Place Charlottesville, Virginia 22911-8691 Telephone: 434-295-4784 Fax: 434-296-3621

CERTIFICATE OF SERVICE

I hereby certify that on this 5th day of February, 2004 I served a true and correct copy of

the foregoing document by United States mail, postage-prepaid, addressed as follows:

Kevin E. Martingayle, Esq. Stallings & Bischoff, P.e. 2101 Parks Avenue, Suite 801 Post Office Box 1687 Virginia Beach, VA 23451

Leslie L. Lilley, City Attorney City of Virginia Beach Municipal Center, Bldg. I, Rm. 260 2401 Courthouse Drive Virginia Beach, VA 23456

~[~~~Rebecca K. Glenberg