City of Madison v. Baumann

• Decision Date: 15 March 1990
• Docket Number: Nos. 89-0452,89-0453,s. 89-0452
• Citation: 155 Wis.2d 388,455 N.W.2d 647
• Parties: CITY OF MADISON, Plaintiff-Appellant, d v. Richard E. BAUMANN, Defendant-Respondent. CITY OF MADISON, Plaintiff-Appellant,d v. David MATTHEWS, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

Page 647

455 N.W.2d 647

155 Wis.2d 388

CITY OF MADISON, Plaintiff-Appellant, ^d v. Richard E. BAUMANN, Defendant-Respondent.

CITY OF MADISON, Plaintiff-Appellant,d v. David MATTHEWS, Defendant-Respondent.

Nos. 89-0452, 89-0453.

Court of Appeals of Wisconsin.

Submitted on Briefs Oct. 12, 1989.

Opinion Released March 15, 1990.

Opinion Filed March 15, 1990.

[155 Wis.2d 390] Henry A. Gempeler, City Atty., with Marinus J.W. Petri, Asst. City Atty., on briefs, Madison, for plaintiff-appellant.

Michael J. Briggs, on brief, Madison, for defendants-respondents.

Before EICH, C.J., GARTZKE, P.J., and SUNDBY, J.

SUNDBY, Judge.

The City of Madison appeals from an order dismissing citations issued by a city police officer to Richard E. Baumann and David E. Matthews for violating the city's anti-noise ordinance, sec. 24.04(1), Madison General Ordinances, by playing musical instruments and singing on State Street. Section 24.04(1) provides:

No person shall make or assist in making any noise tending to unreasonably disturb the peace and quiet of persons in the vicinity thereof unless the making and continuing of the same cannot be prevented and is necessary for the protection or preservation of property or of The defendants do not claim that the noise they are alleged to have made could not be prevented or was necessary.

the health, safety, life or limb of some person.

The circuit court found that sec. 24.04(1), MGO, is unconstitutionally vague and overbroad. We conclude that sec. 24.04(1) is not overbroad. However, we conclude that the ordinance is unconstitutionally vague. We affirm the circuit court's order.

BACKGROUND

The facts are stipulated.

State Street is a mall on which all vehicular traffic except buses, bicycles, taxis, delivery vehicles and emergency vehicles is prohibited. The buildings adjoining State Street combine commercial and residential uses. Many buildings have ground-level business tenants and upper-level residential tenants.

The city's policy has been to encourage the use of State Street as an area in which people may not only do business but may repair for recreation and entertainment. The city permits and regulates the vending of food and crafts on the street, expends money to subsidize artistic performances, employs several persons to clean and maintain the area, levies special assessments on adjoining properties for the street's upkeep as a pedestrian mall, and decorates the street with lights and banners and other items appropriate to various seasons of the year.

Defendants are professional musicians who for at least three years prior to this action have performed as street musicians or minstrels on State Street at various times of the year, at hours ranging from 10:00 a.m. to 1:00 a.m.

At or about 11:22 p.m. on June 12, 1986, defendant Baumann was playing a violin and defendant Matthews a guitar in a small paved area on the north side of State Street, between the sidewalk and a small park known as Peace Park. At least one of the defendants was singing. Neither defendant was using amplification equipment. A resident of a second-story apartment across the street heard defendants' music. He called city police. From a building across the street, he and a police officer observed and heard defendants' musical performance. The police officer did not use any sound measuring device to determine the sound level of the defendants' music. After listening to the defendants' performance, the police officer issued each of them a citation for violating sec. 24.04(1), MGO. ¹

I. OVERBREADTH

The courts have not always made a clear distinction between the doctrines of overbreadth and vagueness. See cases collected in Annotation, Supreme Court's Views as to Overbreadth of Legislation in Connection with First Amendment Rights, 45 L.Ed.2d 725, 737-38 (1976). This is illustrated by Cox v. Louisiana, 379 U.S. 536, 551, 85 S.Ct. 453, 462, 13 L.Ed.2d 471 (1965), where the court held that the statute at issue was "unconstitutionally vague in its overly broad scope." However, a statute or ordinance may be overbroad even though it is not vague. "A clear and precise enactment may nevertheless be 'overbroad' if in its reach it prohibits constitutionally protected conduct." Grayned v. City of Rockford, 408 U.S. 104, 114, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972) (footnote omitted).

The distinction between overbreadth and vagueness is illustrated in Talley v. California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960), where the Court declared void on its face a City of Los Angeles ordinance forbidding the distribution of handbills which did not contain the names and addresses of the printer and the distributor. The city urged that the ordinance was aimed at identifying those responsible for fraud, false advertising and libel. The court held, however, that the ordinance was too broad in that the identification requirement might deter perfectly peaceful discussions of public matters of importance. Id. at 65, 80 S.Ct. at 539. See also Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967) (penal law banning distribution of election handbills without identification of printer and distributor). Thus, regulation may be overbroad if it clearly and precisely includes the defendant's conduct but also includes conduct which the state may not proscribe.

The Wisconsin Supreme Court in State v. Princess Cinema of Milwaukee, 96 Wis.2d 646, 292 N.W.2d 807 (1980), explained the distinction between an overbroad statute and a vague statute. Princess Cinema involved a criminal obscenity statute, sec. 944.21(1)(a), Stats. (1977). The court said that an overbroad statute "is one that is designed to burden or punish activities which are not constitutionally protected, but the statute sweeps too broadly and includes within its compass activities protected by the First Amendment." Id. at 655, 292 N.W.2d at 812 (footnote omitted). "A vague statute, by comparison, is one which operates to hinder free speech through the use of language which is so vague as to allow the inclusion of protected speech in the prohibition or to leave the individual with no clear guidance as to the nature of the acts which are subject to punishment." Id. at 656, 292 N.W.2d at 813. The court noted that problems of vagueness and overbreadth may often arise together. Id. That is not the case here. The defendant's conduct--making any noise tending to unreasonably disturb the peace and quiet of persons in the vicinity thereof--is the "core" conduct intended to be proscribed by sec. 24.04(1), MGO. Noise, even where it is protected speech, may be regulated by the government, subject to the protections of the first amendment. Ward v. Rock Against Racism, 491 U.S. 781, ----, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661, 675 (1989).

We therefore conclude that sec. 24.04(1), MGO, is not unconstitutionally overbroad.

II.

VAGUENESS: FIRST AMENDMENT CONSIDERATIONS

We take into account that sec. 24.04(1), MGO, "abut[s] upon sensitive areas of basic First Amendment freedoms," Grayned, 408 U.S. at 109, 92 S.Ct. at 2299 (quoting Baggett v. Bullitt, 377 U.S. 360, 372, 84 S.Ct. 1316, 1322, 12 L.Ed.2d 377 (1964)), and "operates to inhibit the exercise of [those] freedoms." Id. (quoting Cramp v. Board of Public Instruction, 368 U.S. 278, 287, 82 S.Ct. 275, 280, 7 L.Ed.2d 285 (1961)) (brackets added in Grayned ). ²

"[S]tandards of permissible statutory vagueness are strict in the area of free expression." N.A.A.C.P. v. Button, 371 U.S. 415, 432, 83 S.Ct. 328, 337, 9 L.Ed.2d 405 (1963). "Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms." Id. at 438, 83 S.Ct. at 340.

"If ... the law interferes with the right of free speech or of association, a more stringent vagueness test should apply." Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 499, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982) (footnote omitted). The possible chilling effect of a vague statute or ordinance touching on free speech requires that, upon review, such regulation be subjected to heightened scrutiny. ³ "So long as the statute remains available to the State the threat of prosecutions of protected expression is a real and substantial one. Even the prospect of ultimate failure of such prosecutions by no means dispels their chilling effect on protected expression." Dombrowski v. Pfister, 380 U.S. 479, 494, 85 S.Ct. 1116, 1125, 14 L.Ed.2d 22 (1965). "It is not merely the sporadic abuse of power by the censor but the pervasive threat inherent in its very existence that constitutes the danger to freedom of discussion." Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 741, 84 L.Ed. 1093 (1940). Where free speech is implicated, we are concerned with the vagueness of the regulation "on its face" because such vagueness may in itself deter constitutionally protected and socially desirable conduct. United States v. National Dairy Prod. Corp., 372 U.S. 29, 36, 83 S.Ct. 594, 599, 9 L.Ed.2d 561 (1963).

[I]n the First Amendment area 'government may regulate ... only with narrow specificity.' N.A.A.C.P. v. Button, 371 U.S. 415, 433 [83 S.Ct. 328, 338, 9 L.Ed.2d 405] ... (1963). 'As a matter of due process, '[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.' Lanzetta v. New Jersey, 306 U.S. 451, 453 [59 S.Ct. 618, 619, 83 L.Ed. 888] ... (1939). The general test of vagueness applies with particular force in review of laws dealing with speech. '[S]tricter standards of permissible statutory vagueness may be applied to a statute having a potentially inhibiting effect on speech; a man may the less be required to act at his peril here, because the free dissemination of ideas may be the loser.' Smith v. California, 361 U.S. 147, 151 ... [80 S.Ct. 215, 217, 4 L.Ed.2d 205] (1959).

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