City of Portland v. Ayers

• Decision Date: 09 November 1988
• Parties: CITY OF PORTLAND, Respondent, v. Donald E. AYERS, Appellant. 304441-8508; CA A40979. *
• Court: Oregon Court of Appeals

Page 556

764 P.2d 556

93 Or.App. 731

CITY OF PORTLAND, Respondent, v. Donald E. AYERS, Appellant.

304441-8508; CA A40979.

Court of Appeals of Oregon,

In Banc ^*.

Argued and Submitted April 1, 1987.

Resubmitted In Banc June 1, 1988.

Decided Nov. 9, 1988.

Henry Kane, Beaverton, argued the cause and filed the briefs for appellant.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

DEITS, Judge.

Defendant appeals his conviction for violating section 14.24.160 of the Portland City Code by operating a "sound reproducing device on a public right-of-way so as to be plainly audible fifty feet or more from the device." He assigns error to the overruling of his demurrer to the complaint, through which he asserted that the code provision violates the speech provisions of the state and federal constitutions, Article I, section 20, of the Oregon Constitution and the Equal Protection Clause of the Fourteenth Amendment. We affirm.

Defendant's conviction resulted from his use of a portable loudspeaker to amplify anti-abortion statements which he addressed to persons entering the Lovejoy Surgicenter. Section 14.24.160, under which defendant was charged, proscribes the operation of

"any device designed for sound production or reproduction, including, but not limited to, any radio, television set, musical instrument, phonograph, loud speaker, bell or chime, in such a manner as to cause a noise disturbance * * * or to operate or permit the operation of any such device between the hours of 10:00 p.m. and 7:00 a.m. so as to be plainly audible within any dwelling unit which is not the source of the sound; or to operate any such device on public property or on a public right-of-way so as to be plainly audible 50 feet or more from such device provided that a person operating any such device in a City park pursuant to a permit granted by the Commissioner In Charge of the Park Bureau shall be in violation only if the device is plainly audible at any point along the park boundary. Violation of this Section shall be punishable by a fine of up to $500." (Emphasis supplied.)

At the time that defendant was charged, section 18.12.020 of the code contained provisions materially similar to those of section 14.24.160. However, chapter 18.14 of the code contained certain exemptions to the requirements of section 18.12.020 and allowed persons to apply for variances. Subsection (3)(b) of section 18.12.020 established permit procedures. Section 14.24.160 did not include similar permit, exemption or variance procedures. Defendant argues that that disparity violates the equal privileges and immunities provision of the state constitution and the Equal Protection Clause of the federal constitution, because

"a person desiring to be excused from complying with Section 18.12.020(3)(b) can obtain a permit, exemption or variance, permitting him to do what is forbidden by Section 14.24.160.

"The result is that one person using a loudspeaker can be arrested and convicted for violating Section 14.24.160, while another person with a Section 18.12.020(3)(b) permit, exemption or variance is not arrested and convicted."

Defendant does not contend that he applied for a permit, variance or exemption. Consequently, the reason why the Title 18 exception procedures could not apply to him is that he did not attempt to use them. Having voluntarily placed himself in the "disfavored" category, defendant cannot complain on equal protection or equal privileges and immunities grounds. See, e.g., Nicoll v. City of Eugene, 52 Or.App. 379, 384-85, 628 P.2d 1213, modified on unrelated grounds, 53 Or.App. 528, 632 P.2d 502 (1981). However, the more fundamental defect in his argument is its mistaken premise that the city has classified different persons as being subject to section 14.24.160 or to the provisions of Title 18. Both apply to all persons within the city's jurisdiction. Therefore, there is no classification upon which defendant can base his argument that the ordinances are facially discriminatory. Defendant does not argue that they have been applied in an unconstitutionally disparate manner or that the city has made an impermissible election to charge him under one ordinance rather than the other. See State of Oregon v. Pirkey, 203 Or. 697, 281 P.2d 698 (1955); State v. Hodgdon, 31 Or.App. 791, 571 P.2d 557 (1977), rev. den. 282 Or. 537 (1978); see also State v. Freeland, 295 Or. 367, 667 P.2d 509 (1983). His Article I, section 20, and Fourteenth Amendment arguments are without merit.

Defendant next argues that section 14.24.160 regulates communicative activities in ways that are impermissible under Article I, section 8, of the Oregon Constitution and the First Amendment. We turn first to the Oregon constitutional issue. The parties devote much attention to City of Portland v. Aziz, 47 Or.App. 937, 615 P.2d 1109 (1980), where we sustained a provision of section 14.24.160, other than the one in issue here, against various First Amendment challenges advanced by the defendant. However, Aziz did not concern Article I, section 8. We said there that the "defendant relies on the First Amendment to the United States Constitution. He does not rely on Article I, section 8 of the Oregon Constitution." 47 Or.App. at 943 n. 7, 615 P.2d 1109.

Defendant's arguments on the constitutional free speech provisions appear to be that the city's ordinance "prohibits" speech. However, the ordinance obviously does not prohibit speech. Assuming that defendant means that section 14.24.160 regulates speech rather than prohibiting it, his argument still does not succeed. The ordinance does not regulate speech or the content of speech; the regulatory objective is amplified noise, an effect of speech, which Article I, section 8, permits the city to regulate. State v. Robertson, 293 Or. 402, 412, 416-17, 649 P.2d 569 (1982); see also State v. Ray, 302 Or. 595, 733 P.2d 28 (1987); State v. Moyle, 299 Or. 691, 705 P.2d 740 (1985); State v. Harrington, 67 Or.App. 608, 680 P.2d 666, rev. den. 297 Or. 547, 685 P.2d 998 (1984).

In City of Portland v. Tidyman, 306 Or. 174, 759 P.2d 242 (1988), the Supreme Court reiterated that regulations which are directed at effects of speech, and which do not treat different speech differently on the basis of content, enjoy a wide margin of constitutional permissibility. The court said that, unlike the "adult business" ordinance before it in Tidyman, which was "flatly directed against one disfavored type of pictorial or verbal communication," 306 Or. at 184, 759 P.2d 242,

"[a] regulation is not always unconstitutional because it restricts one's choice of a place or time for self-expression or religious practice, when that is not the object of the regulation. The concern may be with the medium, not the message, as when park regulations ban fireworks even for a Fourth of July celebration. To decline an exception from a land-use regulation for a theater, a printing plant or a church differs from attempting to restrict prayer meetings, film showings or desk-top publishing in a residence, or in turn from enforcing safety codes or parking restrictions when a residence is so used. Similarly it can make a difference whether a city imposes a permissible limitation on all location, time, manner, intensity, or invasive effect of some communicative activity (for instance, zones out all bookstores along with other commercial shops, or restricts all use of soundtrucks in residential areas to specified hours) or whether it concludes that limitations on number, frequency, density, or duration suffice to serve the city's regulatory objective. This court has never held that an otherwise valid restriction must cover all or nothing, for instance that a city may not make evenhanded exceptions to an otherwise valid restriction against placing signs on utility poles, obstructing traffic for a civil rights commemoration, or using soundtrucks during a political campaign without having to make the same equally available to supporters of sports teams or to commercial advertisers. But that does not help the city here. This ordinance does not allocate priorities in intermittent and temporary exceptions or in use of scarce opportunities created by the city itself * * *." 306 Or. at 182, 759 P.2d 242. (Footnotes omitted.)

The ordinance challenged in this case regulates an "invasive effect" of all communicative (and noncommunicative) activity and regulates that effect in the same way regardless of the nature or content of the communication or other activity that produces it.

The dissent apparently agrees that section 14.24.160 regulates an effect of speech rather than speech itself. Nevertheless, the dissent would hold that the ordinance is overbroad and, therefore, violates Article I, section 8. The problem with the dissent's position is that defendant makes no Article I, section 8 overbreadth argument in this appeal. The dissent attempts to find such an argument in defendant's presentations to the trial court and in his briefs and oral argument here. It is correct, as the dissent points out, that the overbreadth issue was raised in the trial court proceedings. However, that is irrelevant. The arguments that defendant makes to us define the scope of our inquiry. Indeed, given defendant's clear and profuse reliance on the overbreadth issue in the trial court, the absence of argument on that issue in his appellate presentation indicates that he has chosen to rely on other issues instead and has abandoned the overbreadth issue that he raised below.

The dissent identifies one statement in defendant's opening brief that it regards as the nucleus of an overbreadth argument, i.e., "a regulation impinging on permissible free speech must be narrowly drawn to serve a compelling governmental interest." ¹ We agree that that statement is the closest that defendant comes...