City of Beaufort v. Baker

I must respectfully dissent. The majority, just as the court in Maryland, seems to have lost sight of the fact that the Constitution was written to protect the few from the many. Today, the Court finds that a city noise ordinance which places the test for enforcement in the ear of the complainant is not violative of the First Amendment.

Every Saturday at noon, as they had for almost seventeen years, several local street preachers would take their places on the main street of downtown Beaufort. In a loud, yet unamplified voice, the preachers would preach the word of the gospel for half an hour to an hour. At the time of Baker's arrests in November 1991, he was preaching from either the street or the bed of a pickup truck parked in front of a store. Prior to these arrests, Baker and his fellow street preachers asked the Beaufort law enforcement personnel about what constituted an acceptable noise level. After each arrest, the *Page 155 preachers would receive various answers, and each time they would return to the main street and resume their preaching.

Time and again the police, after receiving complaints from the merchants, would give the preachers a warning. In spite of this warning, the preachers would again attempt to preach. On each occasion, the preaching continued until the police arrested, handcuffed, and led the preachers, one by one, from the street. This is the very same street which the city uses for parades and other more popular civic activities. It is also a street where vehicles with radios blaring pass unchallenged by the police. It is simply a public street in a commercial district, which possesses all of the characteristics of the quintessential public forum.

The majority relies heavily on the Maryland case of Eanes v.State of Maryland, 318 Md. 436, 569 A.2d 604 (1990), cert.denied, 496 U.S. 938, 110 S. Ct. 3218 (1991). This reliance, however, ignores the great factual difference between the two cases. In Eanes, the preaching which took place was outside an abortion clinic, located adjacent to a residential area. The preaching itself was also conducted over an extended number of hours. Here the preaching for one hour or less, which had been the conduct over an extended number of years, was far less intrusive because it occurred on a public street in a commercial section of town. It is beyond my comprehension that this activity could be curtailed in our free society.¹

During a dark time in our State's history, a large civil rights demonstration took place on the steps of our Statehouse. The assembled multitude was told by the police to disperse, and the crowd responded by singing hymns and listening to a leader preach. Those police warnings were eventually followed by over a hundred arrests. The controlling constitutional law grew out of these arrests and convictions of the participants. In Edwards v. South Carolina,372 U.S. 229, 237, 83 S. Ct. 680, 684, 9 L. Ed. 2d 697 (1963), the Supreme Court held that the "Fourteenth Amendment does not permit a *Page 156 State to make criminal the peaceful expression of unpopular views."²

The facts in this case are especially poignant when the language of Edwards is considered:

[W]e do not review in this case criminal convictions resulting from the evenhanded application of a precise and narrowly drawn regulatory statute evincing a legislative judgment that certain specific conduct be limited or proscribed. If, for example, the petitioners had been convicted upon evidence that they had violated a law regulating traffic, or had disobeyed a law reasonably limiting the periods during which the State House grounds were open to the public, this would be a different case.

Id. at 236, 83 S. Ct. at 684.

Baker and the other "street preachers" engaging in preaching at high noon in the quintessential public forum were arrested under a statute which was not narrowly drawn. The Beaufort ordinance in question, titled "Loud and Unseemly Noise," renders unlawful any activity which "willfully disturbs 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." Beaufort local ordinance § 9-1008 (1991). Baker made repeated requests to law enforcement personnel for guidance as to what conduct was limited or proscribed. Unfortunately, the only answers Baker received were vague suggestions that it was either for "the court to decide," or that "it's based on a merchant's complaint." The mere fact that the police department is unable to describe what conduct or noise level is offensive is stark testimony to the vagueness of the ordinance.

This ordinance does not reasonably limit the period of time, but instead attempts to assign some ethereal sound level, as a *Page 157 basis for regulation. To compound the egregiousness of the regulation, the police department acknowledges that the ordinance places in the hands of the complainant the determination of the sound level required for enforcement. There is nothing here which is narrowly tailored to the needs of the community.

The leaders of Beaufort have expressed their concern over the impact street preaching has on the tourist trade. Unfortunately this noble desire to make their guests comfortable has the ignoble effect of punishing the street preachers on the basis of their message. The City has allowed parades and street activities to take place in the same quintessential public forum where the preaching takes place.³ This is strong evidence that the City is far more lenient on the noise level simply on the basis of the popularity of the activity. A rational commercial-based ordinance should never be allowed to usurp the fundamental right of free speech. It flies in the face of the United States Constitution to arrest the street preacher in a public forum based on the popularity of his message.

Balancing the right to free speech with the right of not having to listen is what leads to regulation of speech. This delicate balance is the basis for restrictions which are narrowly tailored to time, place, and manner. It just seems astounding that an unamplified non-threatening voice, at noon, on a public street in a commercial district, is speech which can be restricted. The speech itself engenders no fear of immediate harm, it posits no clear and present danger, it merely offends the sensibilities of a few listeners. If the majority allows the many to stifle the message of the few under these circumstances, then it appears that South Carolina is headed back to that darker age characterized by the events leading toEdwards. *Page 158

Accordingly, I would reverse the convictions of the street preachers, and hold that Beaufort's "Loud and Unseemly Noise" ordinance is an unconstitutional restriction on the time, place, and manner of free speech.

FINNEY, J., concurs.

¹ Majority characterized the setting in Eanes as primarily a business section. The cases make a real distinction between residential, mixed-residential, and commercial sections, in the time, place, and manner analysis. Regardless of what the street later "turned into," the defendant inEanes was arrested in a mixed residential area. In this instant case, we are dealing with the main street of Beaufort, the quintessential public forum.

² The majority opinion forwards the notion that a street preacher, using only his natural voice, is louder and more disruptive than a singing, and chanting crowd of over two hundred people. Just as the crowd in Edwards had the right to assemble and express their views, the street preachers should be free to do the same. It is illogical to attempt to distinguish Edwards on the basis of a legislative ordinance. The unconstitutional infringement of free speech is egregious whether it springs from the common law, state or federal statutory law, or a self-serving municipal ordinance. The majority here makes a distinction without a difference, which in effect partially excises the First Amendment from the United States Constitution.

³ The video tape, which was submitted as a portion of the record, showed that the street preaching was not any more disruptive than the street noises. In fact, portions of the tape could not be heard for the surrounding traffic. Loud radios and cars without mufflers pervaded the entire area. Moreover, the clear record showed that the street preachers were not aggressive. To posit that the street preachers could avoid arrest by preaching at a lower volume ignores the facts. It is undisputed that the preachers made several attempts to determine from the authorities what sound level was permissible. Each attempt was rebuffed or answered with an arrest. It would appear that the only lower volume which would suffice was actually no volume.