On appeal is an Order of the Circuit Court affirming Appellants' convictions in the Municipal Court for violations of a local noise ordinance. We affirm.
FACTS Appellants are street preachers who, for a number of years, have preached on Saturdays in downtown Beaufort. In so doing, they loudly preach directly in front of business establishments by either standing on the sidewalk or in the bed of a pickup truck.
In October of 1991, Beaufort City Council amended local ordinance § 9-1008 (Ordinance) to read as follows: *Page 149
Section 9-1008 LOUD AND UNSEEMLY NOISE
(a) It shall be unlawful for any person to willfully disturb any neighborhood or business in the City by making or continuing loud and unseemly noises, or by profanely cursing and swearing, or using obscene language. It shall further be unlawful for any person to willfully disturb any neighborhood or business within the City by the use of words which threaten or tend to threaten or incite physical violence, or which endanger or tend to endanger the health and safety of others within the City.
In adopting this Ordinance, Council followed the language of a Maryland statute which has been upheld by the Maryland Appellate Court. See Eanes v. State of Maryland,318 Md. 436, 569 A.2d 604 (1990), cert. denied, 110 S.Ct. 3218 (June 20, 1991).
On November 2, November 16, November 23, December 14, 1991, and January 4, 1992, Appellants commenced their loud preaching in downtown Beaufort. Because of the excessive noise level, merchants were unable to conduct business.
Police were summoned. After ascertaining that the merchants' complaints were based solely upon noise, they warned Appellants that they were in violation of the Ordinance. Notwithstanding, Appellants continued preaching at the same noise level and were arrested.
On March 9, 1992, Appellant Karl Baker was found guilty by a Beaufort Municipal Court jury for violation of the Ordinance. On March 10, 1992, seven other Appellants waived jury trial and were found guilty in a bench trial. The charges against all remaining Appellants were consolidated, and those Appellants were also found guilty in a bench trial. For each conviction, Appellants were sentenced to 30 days in jail or a fine of $234. All convictions have been consolidated on appeal.
ISSUES
1. Is the Ordinance constitutional as applied to Appellants?
2. Is the Ordinance unconstitutionally vague?
3. Were Appellants proven guilty beyond a reasonable doubt?
4. What is the proper standard of review? *Page 150 DISCUSSION A. Freedom of Speech Appellants contend that the Ordinance is not content-neutral as applied, thereby infringing upon their freedom of speech in violation of the First Amendment of the United States Constitution and Article I, § 2 of the South Carolina Constitution. We disagree.
The constitutional guarantee to freedom of speech is a valuable right critical to every citizen. We recognize and emphasize here Appellants' unalienable First Amendment right to freedom of expression.
However, this right is not absolute. The State may regulate such protected speech through enforcement of content-neutral, time, place, and manner restrictions which are narrowly tailored to serve a significant governmental interest and leave open ample alternative avenues of communication. Ward v. Rockagainst Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989); GROW v. Campbell, 704 F. Supp. 644 (D.C. S.C. 1988).
Here, we hold that the Ordinance withstands constitutional challenge as a valid time, place, and manner restriction. The Ordinance, both on its face and as applied, is content-neutral, regulating speech solely upon the noise generated, rather than the message conveyed. The Beaufort police ascertained that the complaints were based solely on the noise level of the preaching, not the preaching itself. See Eanes,supra.1
Moreover, the Ordinance is narrowly tailored to serve the City's significant interest of controlling the level of noise in its downtown business area.2 Although this area serves as a traditional public forum, citizens are entitled to governmental protection from excessive noise: government "ha[s] a substantial interest in protecting its citizens from unwelcome noise." Ward, supra, 491 U.S. 796, *Page 151 109 S.Ct. at 2756, 105 L.Ed.2d 678 [quoting City of Los Angeles v.Taxpayers for Vincent, 466 U.S. 789, 104 S.Ct. 2118,80 L.Ed.2d 772 (1984)].
Further, the area merchants in downtown Beaufort are captive audiences in their businesses, unable to transact business or escape from the excessive noise. "[A] captive audience that is entitled to protection may exist outside the home. . . . The principle is grounded on the concept of privacy. . . . Although that protection is most often extended to those within their homes, it may be extended any situation in which privacy interests [are] substantially threatened because individuals cannot escape bombardment of their sensibilities." Eanes,supra, 569 A.2d 612 [internal quotations omitted].
We reject Appellants' contentions that the Ordinance is not narrowly tailored because it does not provide for a decibel level standard but, rather, is dependent upon complaints from the citizens.
Eanes, supra, 569 A.2d 613.Since the character of open public places may differ widely, one from another, only a flexible approach to volume control can adequately serve the myriad circumstances which the State can legitimately regulate. As we have pointed out, it is the particular circumstances that render a loud communication unseemly or unreasonable, and hence subject to time, place, and manner regulations.
While we note that although the Ordinance must be "narrowly tailored," it need not be the least intrusive means of serving the government's interest of controlling noise. Ward,supra; City of Madison v. Bauman, 162 Wis.2d 660,470 N.W.2d 296 (Wis. 1991).
Finally, Appellants' opportunity to convey their religious message is not proscribed by the Ordinance. Numerous alternative avenues of communication are available, including passing out leaflets or preaching at a lower volume. Indeed, Appellants acknowledged these alternatives but refused to utilize them.3 *Page 152 B. Vagueness Appellants argue that the terms "loud and unseemly" are vague in that there are no standards in the Ordinance to reveal how these terms are to be interpreted or enforced. We disagree.
In determining whether a statute is vague, we have held:
State v. Albert, 257 S.C. 131, 134, 184 S.E.2d 604 (1971) (held common law definition of riot not unconstitutionally vague).The concept of vagueness or indefiniteness rests on the constitutional principle that procedural due process requires fair notice and proper standards for adjudication. The primary issues involved are whether the provisions of a penal statute are sufficiently definite to give reasonable notice of the prohibited conduct to those who wish to avoid its penalties to apprise judge and jury of standards for the determination of guilt. If the statute is so obscure that men of common intelligence must necessarily guess at its meaning and differ as to its applicability, it is unconstitutional.
In Eanes the Maryland court4 examined the terms "loud and unseemly" and concluded that they are not unconstitutionally vague:
Eanes, supra, 569 A.2d 616 (Footnotes omitted). See alsoGrayned v. Rockford, 408 U.S. 104, 92 S.Ct. 2295,33 L.Ed.2d 222 (1972); City of Madison v. Baumann, supra.In similar fashion, we here apply normal meanings to words of common understanding and conclude that speech that is so unreasonably loud as to unreasonably intrude on the privacy of a captive audience may be punished. We hold that the words `loud and unseemly,' so construed, give sufficient notice of what conduct is penalized. `Unseemly' modifies `loud' and means `unreasonably loud in the circumstances.' That is clear enough. The *Page 153 objective `reasonable' test is used in many areas of the law as an appropriate determinant of liability and thus a guide to conduct.
Here, adequate notice was first afforded Appellants. Despite the notice that their preaching was too loud, they refused to lower the volume. Significantly, Thomas Anderson, himself an Appellant, admitted that the preaching was so loud that merchants within their businesses could have felt the noise was excessive.
We hold the Ordinance is not unconstitutionally vague, given the language of the Ordinance and Appellants' willful violation.
C. Sufficiency of Evidence Appellants contend the evidence was insufficient to prove a violation of the Ordinance beyond a reasonable doubt. We disagree.
The record clearly demonstrates that Appellants, prior to arrest, received warnings that their preaching was excessively loud and in violation of the Ordinance. Despite the warning, Appellants, in each instance, continued to preach at the same volume, for which they were subsequently arrested.
Moreover, the jury, by way of a videotape of the preaching, was able to sense the actual noise level. It was within the province of the fact finder, jury or judge, to review this evidence and determine whether a violation of the Ordinance occurred.
Clearly, there was abundant evidence of record to support the convictions.
D. Burden of Proof This Court has held that a duly enacted ordinance is presumed constitutional; the party attacking the ordinance bears the burden of proving its unconstitutionality beyond a reasonable doubt. Rothschild v. Richland County Boardof Adjustment, Op. No. 23693 (S.C. filed Aug. 10, 1992). This is so even where the ordinance allegedly violatesFirst Amendment rights. Thomson Newspapers, Inc. v. City of *Page 154 Florence, 287 S.C. 305,338 S.E.2d 324 (1985). See also Walker v. City of Birmingham, 388 U.S. 307,87 S.Ct. 1824, 18 L.Ed.2d 1210, rehearing denied,389 U.S. 894 (1967) (ordinance would not be presumed void even though its language raised substantial constitutional issues).
Appellants contend this standard should be changed so that the government bears the burden of proving the ordinance constitutional, relying on Philadelphia Newspapers, Inc. v.Hepps, 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986). They were granted leave to argue against precedent.
We adhere to the precedent of Rothschild that the burden rests upon the party challenging constitutionality. Appellants' reliance upon Philadelphia Newspapers is misplaced. In that case, the United States Supreme Court held that, in a civil defamation suit between two private litigants, the burden was upon the plaintiff to prove defendant's speech was false.Philadelphia Newspapers is clearly distinguishable.
AFFIRMED.
HARWELL, C.J. and MOORE, A.J., concur. TOAL and FINNEY, JJ., dissenting in separate opinion.
Any person who shall . . . wilfully disturb any neighborhood in such City, Town or County by loud and unseemly noise, or shall profanely curse and swear or use obscene language upon or near any street or highway within the hearing of persons passing by or along such highway . . . shall, upon conviction, be sentenced to a fine of not less than $1.00 and not more than $500.00 or shall be subject to imprisonment for not more than thirty (30) days. . . .