Can you hear me now?

The City of Laguna Beach has an amplified sound ordinance, which bans the use of a bullhorn (a) within 100 yards of a school 30 minutes before or after the dismissal bell, and (b) within 100 yards of City Hall.

The law is being challenged. In this opinion, the Ninth Circuit Court of Appeals held that the plaintiffs were entitled to a preliminary injunction barring enforcement of the sound ordinance. In a word, the ordinance is overbroad.  As the court of appeals recognized, “the amplified speech ordinance is a restriction on the time, place and manner of speech, so under the First Amendment it must be justified without reference to the content of the regulated speech, narrowly tailored to serve a significant governmental interest and must leave open ample alternative channels for communication of the information.” (quotation marks and citations omitted). 

In this case, at least so far, the City of Laguna Beach has failed

to present evidence that the amplified sound ordinance is narrowly tailored to its interests. Likelihood of success on the merits must be based on admissible evidence in the record, rather than surmise or speculation concerning what evidence could be produced at trial. The evidence before the district court did not support the court’s findings, and the district court’s characterization of the City’s briefs as “uncontested evidence” was erroneous. Arguments are not evidence.

The City argued that, because students in California are subject to compulsory attendance, students were a captive audience to the bullhorns. But as the court of appeals noted, “as to Laguna Beach High School, there was no evidence to support a blanket prohibition on the use of a bullhorn within 100 yards of the school 30 minutes before or after the dismissal bell.” Elaborating, the court noted:

The City argues that students in California are subject to compulsory attendance laws and they are therefore “practically helpless to escape . . . interference with [their privacy] . . . regardless of whether [they are] sitting in a classroom during regular hours of instruction, participating in after-school programs or walking to a bus.” But the City presented no evidence as to how after school activities would actually be disrupted by Klein’s proposed speech. Municipalities may protect the privacy of a truly “captive audience,” but only students who must remain in the school for extracurricular activities are even arguably captive, as those walking to a car or a bus may simply continue on their way. See Berger v. City of Seattle, 569 F.3d 1029, 1054-55 (9th Cir. 2009) (en banc); cf. Frisby v. Schultz, 487 U.S. 474, 487 (1988). The same lack of evidence undermines Laguna Beach’s argument concerning student privacy.

You can access oral argument of the appeal here.

The captive-audience doctrine might get some attention by the Supreme Court soon. You can learn why by reading David Hudson’s analysis of Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009), in a piece entitled, “Was father ‘captive’ to funeral protesters?” [published at First Amendment Center's Web site]

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