City of Madison v. Baumann
Decision Date | 12 June 1991 |
Docket Number | 89-0453,Nos. 89-0452,s. 89-0452 |
Citation | 162 Wis.2d 660,470 N.W.2d 296 |
Parties | CITY OF MADISON, Plaintiff-Appellant-Petitioner, v. Richard E. BAUMANN, Defendant-Respondent. CITY OF MADISON, Plaintiff-Appellant-Petitioner, v. David MATTHEWS, Defendant-Respondent. |
Court | Wisconsin Supreme Court |
Marinus J.W. Petri, Asst. City Atty., with whom on the briefs was Henry A. Gempeler, City Atty. and Mary E. Kramer argued, Asst. City Atty., for plaintiff-appellant-petitioner.
Michael J. Briggs, Madison, for defendants-respondents.
James H. Schneider, amicus curiae, for the league of Wisconsin Municipalities.
This is a review of a decision of the court of appeals that affirmed the judgment of the circuit court for Dane county, James C. Boll, Judge, that City of Madison's general ordinance 24.04(1) was unconstitutional. 1 We reverse and remand.
This litigation was initiated by issuing of citations to Baumann and Matthews for violating the City of Madison's anti-noise ordinance 24.04(1) for playing musical instruments and singing at Peace Park on the State Street Mall at 11:22 p.m. on the evening of June 12, 1986. The City of Madison ordinance 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 health, safety, life or limb of some person.
The facts underlying the complaint against Baumann and Matthews are agreed upon by stipulation of the parties, and incorporated into that stipulation is the narrative report of Officer Brett Wisnauski, who issued the citations to the musicians.
The stipulation recites that, at the time and place in question, June 12, 1986, Baumann and Matthews were playing a violin and a guitar and singing in the 400 block of the State Street Mall at an area designated as Peace Park. 2 Although neither of the musicians was using amplification devices, the sound of the music was such that Peter O. Bockhorst, a resident of an apartment 66 feet across the street, stated that he was unable to sleep. It was a mild spring night that resulted in open bedroom windows. Bockhorst said he was attempting to sleep when the musicians commenced playing and did not stop and that the constant playing and singing was an obstacle to sleep. He accordingly called the police, who found Bockhorst to be "quite disturbed" about the noise. Bockhorst stated that previous complaints had resulted in warnings to "the minstrels," but nevertheless the minstrels returned to the same spot night after night. 3
We refer to this portion of the stipulated facts only to show that there was evidence acknowledged in the stipulation that noise of the type for which the citations were issued was a continuing problem. Officer Wisnauski stated that it was not uncommon to respond to as many as 15 to 30 calls per month complaining about minstrel noise on the mall. Officer Wisnauski stated that he stood across the street with the complaining citizen. He wrote in his report:
Since I could hear the music from across the street, the hour was increasingly late, and the evening was warm, having residents' windows open, and because I feel the violators should have been aware of the problems they cause in the 400 block of State St, I issued the citations.
He stated that he issued each citation on the charge of "Making Unreasonable Noise."
It is stipulated that nine years ago, State street was converted to use as a pedestrian mall. The use of the mall by motor vehicles is limited to buses, taxis, service deliveries, and emergency vehicles.
The sidewalks are broad, and the declared municipal purpose is to create a business and shopping area and, in addition, to dedicate an area for all persons to use for recreation and entertainment. The vending of food and crafts on the mall is encouraged. The city, in some cases, subsidizes artistic performances. It decorates the area with banners and lights in a manner consistent with the seasons. There is nothing which prohibits street musicians from placing a hat or some other container near them, so members of the public may deposit money in appreciation of the performance. 4
The defendants were professional musicians of some prominence. Both of them had their performances recorded for public sale. Neither of them ever had been "cited" for a violation of the noise ordinance. Although they had performed on the mall at various seasons of the year, they did so especially in the summer months. It was stipulated that no decibel meter or other sound-measuring device was used by the police officer. The citations were issued for "making unreasonable noise."
On this state of facts and on the motion of the defendants to dismiss the complaints because the ordinance on its face was unconstitutional, the circuit judge ordered dismissal after concluding that the ordinance was overbroad and void for vagueness.
The city appealed. On the appeal, the court of appeals disagreed in part with the circuit judge in that it found the ordinance not to be overbroad, but affirmed the judgment of the trial court because the ordinance was impermissibly vague.
We have accepted the case on the petition for review of the City of Madison. We reverse, holding that the ordinance is not impermissibly vague and is therefore constitutional.
The court of appeals found that the defendants were in the course of a musical presentation and therefore were indulging in expressive conduct that warrants the protection of the First Amendment. Accordingly, a major premise of the majority opinion is contained in the quotation in footnote 3:
"When a statute infringes on the exercise of First Amendment rights, the burden of establishing its constitutionality is on its proponent." Wisconsin Action Coalition v. City of Kenosha, 767 F.2d 1248, 1252 (7th Cir.1095). 5
Although the city argues that Chief Judge Eich, the sole dissenter to the court of appeals majority, disagreed with that premise and would have given the ordinance the same presumption of constitutionality that is afforded in non-First Amendment cases, we do not find that analysis of his dissenting opinion to be correct.
Chief Judge Eich, in restating his position, indeed recognized the majority's position, i.e., that the usual presumption of constitutionality of a legislative act was not applicable. He did not, however, dispute that premise. Rather, the reason that he gave that the ordinance was constitutional was "because the City of Madison has satisfied me that the ordinance is not so vague that one can only guess at its meaning." 155 Wis.2d at 407, 455 N.W.2d 647. In short, Chief Judge Eich concluded that the City had assumed the burden of establishing its constitutionality.
We agree with Baumann and Matthews' statement that the burden of establishing the constitutionality of an ordinance which impinges on First Amendment rights is upon its proponent; but we conclude, agreeing with the dissent, that the city has satisfied that burden, and any cloud of unconstitutionality has been dissipated.
It is, nevertheless, the initial duty of the person who claims the protection of the First Amendment to demonstrate that the conduct is speech or its equivalent, to which First Amendment protections apply.
The city argues that the ordinance is not aimed at the expressive or free-speech aspects that music may sometimes have--that this is an anti-noise ordinance and nothing more. It, however, implicitly recognized the correctness of the premise of the court of appeals majority that the burden, where speech is impinged upon, is upon the proponent, when it stated:
The ordinance in the instant case is so far from the core of the First Amendment, that the presumption of constitutionality cannot easily be set aside. This is so because the core conduct ... is noise; not music....
This assertion ignores the stipulated facts. The report of Officer Brett Wisnauski refers to hearing the "music" from his listening post on the other side of State street. An initial question, then, is to what degree is "music" to be accorded the status of speech protected by the First Amendment? "Music" by definition is to be accorded the presumption of the freedom of speech given by the First Amendment. "Music" is defined by the Random House Dictionary of the English Language, at 1268:
1. an art of sound in time that expresses ideas and emotions in significant forms through the elements of rhythm, melody, harmony, and color.
Funk & Wagnalls, New Standard Dictionary of the English Language, p. 1635, defines "Music" as:
The science and art of rhythmic combinations of tones, vocal or instrumental, embracing melody and harmony, for the expression of anything possible by this means but chiefly anything emotional....
Certainly, our history demonstrates the expressive and persuasive power of music. We need only to call to mind such songs as "Yankee Doodle," "The Star Spangled Banner," "The Bonnie Blue Flag," "Dixie," "The Battle Hymn of the Republic," "Marching Through Georgia," and "Over There." Among other inspirational hortatory songs are "The Marseillaise," "Solidarity Forever," "Rule Britannia," and the contemporaneous "freedom" and "protest" songs. Music without words may equally, perhaps more powerfully, carry a message, e.g., "Finlandia." As one poet truly said:
And sitting by desolate streams;
Yet we are the movers and shakers
Of the world forever, it seems.
One man with a dream, at pleasure,
Shall go forth and conquer a crown;
And three with a new song's measure
Can trample an empire down.
Bartlett, Familiar Quotations, 14th ed. 1968, Ode by Arthur...
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