The Red and Black

Issue date: 6/15/09 Section: News

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The Georgia Supreme Court, in a split decision, ruled against two University students who challenged the Athens-Clarke County's noise ordinance claiming it is unconstitutional because it violates their First Amendment right to free speech..

UGA students William Hoffman and Robert Manlove, along with the Law Office of Charles A. Jones Jr., filed the lawsuit in January 2008 challenging the county's ordinance.

On Monday, the Georgia Supremes upheld by a 4 to 3 vote a Clarke County court's dismissal of the case. In a three-page opinion, written by Justice Robert Benham, the majority ruled the students did not have the right to sue "because they failed to show any harm or injury resulting from [the] noise ordinance…"

The majority agreed no injury was shown.

"Whether proceeding under federal law or the law of this state, in order to challenge the constitutionality of an ordinance on First Amendment grounds, the party before the court must show an injury in fact," the opinion read. "Here, it is undisputed that appellants have never been subject to any fine or penalty as a result of violating" the ordinance.

Joining the majority are Justices George Carley, Hugh Thompson and P. Harris Hines.
      
But in a 15-page dissent, Chief Justice Leah Ward Sears castigated the majority for hanging "its hat on the plaintiffs' supposed lack of standing to sue," adding "that justification will not do."

"Not only is the majority wrong in this case, but the precedent it sets today bodes ill for the future for those who believe that the courts must remain ever vigilant against government attempts to control, and ultimately suppress, the right of the people to speak freely," the dissent said. Like the trial court, "the majority opinion fails to appreciate that music equals speech in the First Amendment context … Music is inherently expressive, and it receives the full protection of the First Amendment, even if it has no lyrics."

The most serious failing of the majority opinion, however, is its finding the students lacked standing to sue, the dissent said.

"Indeed, it is well established, even outside the First Amendment context, that a plaintiff need not risk actual arrest or prosecution to bring a court challenge to a law that criminalizes conduct that may be subject to constitutional protection," Sears wrote. She pointed out "[a]s then-Judge Carley succinctly put it when he was on the Court of Appeals, a plaintiff 'is not required to violate a law about which there is an actual controversy concerning its enforceability and suffer a criminal prosecution, in order to test its validity."

Joining the dissent are Presiding Justice Carol Hunstein and Justice Harold Melton.

The students claimed the ordinance excessively restricted the volume of music they could play and applied a uniform regulation throughout Athens-Clarke County, ignoring the "pulsing downtown area serving as the heart of Athens' famous music and entertainment scene," and mandating the same level of quiet on "fraternity row" as in a "serene single-family subdivision."

The local law prohibits "plainly audible" sounds that can be heard from 300 feet away; late at night and on weekends, the distance is limited to 100 feet. It also bans sounds from inside an apartment or town home that are plainly audible from five feet outside the unit.
    
While neither student was prosecuted or fined under the ordinance, one did receive a verbal warning from a police officer who was investigating a noise complaint and threatened to return. The trial court dismissed the students' complaint, ruling they lacked standing to sue because they failed to articulate the particular message they wanted to express and because they couldn't prove they'd been injured.

- The Supreme Court of Georgia contributed to this report

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