Grady v. Unified Gov't of Athens–clarke County.

• Decision Date: 12 September 2011
• Docket Number: No. S11A1252.,S11A1252.
• Citation: 11 FCDR 2844,289 Ga. 726,715 S.E.2d 148
• Parties: GRADYv.UNIFIED GOVERNMENT OF ATHENS–CLARKE COUNTY.
• Court: Georgia Supreme Court

289 Ga. 726

715 S.E.2d 148

11 FCDR 2844

GRADY

v.UNIFIED GOVERNMENT OF ATHENS–CLARKE COUNTY.

No. S11A1252.

Supreme Court of Georgia.

Sept. 12, 2011.

Charles Anthony Jones, Jr., Athens, for appellant.William C. Berryman, Jr., Amy S. Gellins, Athens, for appellee.Elizabeth Page Bradley, James F. Grubiak, Kelly Jean Pridgen, Atlanta, for amici curiae.NAHMIAS, Justice.

Appellant Ian Grady challenges his conviction for violating an Athens–Clarke County (“County”) ordinance regulating the volume of noise from “mechanical sound-making devices.” He contends that the provision is facially invalid under the free speech clause of the Georgia Constitution. See Ga. Const. of 1983, Art. I, Sec. I, Par. V (“No law shall be passed to curtail or restrain the freedom of speech or of the press. Every person may speak, write, and publish sentiments on all subjects but shall be responsible for the abuse of that liberty.”). The trial court rejected his claim, and we affirm.

1. On Friday night, April 17, 2009, Grady hosted a party at his apartment in downtown Athens, apparently to celebrate his admission to law school. Grady's residence is in a mixed-use zone that includes a hotel and residential buildings alongside commercial ones. At 3:30 on Saturday morning, an Athens–Clarke County police officer cited Grady for violating local ordinance § 3–5–24. That law prohibits, among other things, noise from “mechanical sound-making devices” or from a “party” that is “plainly audible” 100 feet away from a person's property limits between midnight and 7:00 a.m. on Saturday and Sunday. There were no noise complaints about the party, but the officer was patrolling the area and heard loud music from over 170 feet away. This was unusual, the officer later testified, because downtown Athens is typically a “ghost town” at 3:30 a.m.

The solicitor later amended Grady's citation to specify violations of § 3–5–24(c)(2)(a) (mechanical sound-making devices) and (c)(2)(d) (party noise). Grady proceeded to trial before the municipal court, arguing, among other things, that these provisions of the ordinance were facially invalid under the Georgia Constitution's free speech clause. The municipal court acquitted Grady of violating subsection (c)(2)(d) but convicted him of violating subsection (c)(2)(a) and fined him $350. Grady filed a petition for writ of certiorari with the superior court. After a hearing, that court affirmed. Grady then filed an application for discretionary review, which we granted to consider the constitutionality of § 3–5–24(c)(2)(a).¹

2. (a) As both parties correctly recognize, subsection (c)(2)(a) regulates constitutionally protected speech.² The mechanical devices it targets—such as televisions, stereos, radios, and musical instruments—produce not just random noise, but music and words that qualify for protection as speech. See Ward v. Rock Against Racism, 491 U.S. 781, 790, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (holding that music is a form of protected speech). The ordinance does not, however, discriminate based on the content of the speech. Noises and sounds that are plainly audible at the requisite distances and during the stated times are prohibited, whatever their subject matter or point of view. See id. at 791–792, 109 S.Ct. 2746. The parties therefore correctly address subsection (c)(2)(a) as a content-neutral time, place, and manner regulation of speech, which we review for reasonableness. See Statesboro Publishing Co. v. City of Sylvania, 271 Ga. 92, 93–95, 516 S.E.2d 296 (1999).

Were this a First Amendment case, we would consider whether the County ordinance is “narrowly tailored” to serve a significant government interest and leaves open ample alternatives for communication. See, e.g., Ward, 491 U.S. at 790, 109 S.Ct. 2746; Statesboro, 271 Ga. at 93, 516 S.E.2d 296. However, Grady invokes only Georgia's free speech clause, which we have previously held requires not that such a content-neutral time, place, and manner regulation be narrowly tailored but instead that the regulation be the “least restrictive means” of furthering the government's significant interests, while still leaving open ample alternatives to communicate. Statesboro, 271 Ga. at 95–96, 516 S.E.2d 296. See also Coffey v. Fayette County, 279 Ga. 111, 111, 610 S.E.2d 41 (2005) (“ Coffey I ”).

(b) The rationale for our deviation from the governing First Amendment standard in this one area of free speech law is elusive. As far back as 1932, this Court looked to federal cases interpreting the First Amendment for guidance in applying Georgia's free speech guarantee. See Carr v. State, 176 Ga. 55, 61, 166 S.E. 827 (1932) (holding that the United States Supreme Court's interpretation of the First Amendment “applies alike” to Georgia's “liberty of speech and of the press” provision). In 1982, we said that “[i]n the absence of controlling state precedent this court has applied analogous First Amendment standards when construing the state constitution,” and we rejected the argument “that the Georgia Constitution provides a greater degree of protection for speech than does the First Amendment so that federal precedents are irrelevant here.” Paramount Pictures Corp. v. Busbee, 250 Ga. 252, 255, n. 5, 297 S.E.2d 250 (1982) (adopting the governing First Amendment test for analyzing content-neutral regulation of commercial trade like distribution of motion pictures).

In State v. Miller, 260 Ga. 669, 398 S.E.2d 547 (1990), however, the Court said the following: “The First Amendment is a broad umbrella that shelters all political points of view and shields a wide range of avenues for expression, including symbolic speech. The 1983 Constitution of Georgia provides even broader protection.” Id. at 671, 398 S.E.2d 547 (footnote omitted; emphasis added). The emphasized statement was not supported by any citation of authority or any discussion of the text, history, or case law regarding the protection of free speech provided in the 1983 or previous Georgia Constitutions. It was inconsistent with precedent like Carr and Paramount Pictures. And it was pure dictum, as the Court went on to resolve the case by applying “the [First Amendment] test enunciated in United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).” Miller, 260 Ga. at 671–672, 398 S.E.2d 547. Nor did Miller's dictum take immediate root. In 1998, for example, citing Paramount Pictures, the Court unanimously reiterated that “[w]hen construing the Georgia free speech clause, this Court applies analogous First Amendment standards in the absence of controlling state precedent.” Chamblee Visuals, LLC v. City of Chamblee, 270 Ga. 33, 34, 506 S.E.2d 113 (1998).

In 1999, however, a majority of the Court relied on the Miller dictum to depart, apparently for the first and only time, from the Court's traditional alignment with First Amendment doctrine. Statesboro involved a challenge to a city ordinance that prohibited the distribution of free printed material in yards, driveways, or porches—the sort of content-neutral time, place, and manner regulation of speech also at issue in this case. See 271 Ga. at 92–93, 516 S.E.2d 296. The majority opinion first considered the appellant newspaper's First Amendment challenge to the ordinance, applying the governing United States Supreme Court test, which as mentioned above requires that such regulations “do not refer to the content of the speech, are narrowly tailored to serve a significant government interest, and leave open alternative methods of communication.” Id. at 93, 516 S.E.2d 296 (citing Clark v. Community for Creative Non–Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984)). The majority acknowledged that this test does not require the government “to adopt the least restrictive means for regulating content-neutral speech.” Id. at 94, 516 S.E.2d 296 (citing Ward, 491 U.S. at 799, 109 S.Ct. 2746). Nevertheless, the majority held that the ordinance violated the First Amendment because it was not narrowly tailored and failed to leave open adequate alternative means of communication. See id. at 94–95, 516 S.E.2d 296.

The majority went on, however, to address whether the ordinance also violated the Georgia Constitution. Citing Miller's dictum that “[o]ur state constitution provides even broader protection of speech than the first amendment,” the majority announced that rather than applying the United States Supreme Court's “narrow tailoring” test for content-neutral speech regulations, it would adopt the “least restrictive means” test advocated in a dissent by just two of that Court's Justices. Statesboro, 271 Ga. at 95, 516 S.E.2d 296 (citing Clark, 468 U.S. at 313, 104 S.Ct. 3065 (Marshall, J., dissenting, joined by Brennan, J.)). Under this even more limiting test, the city ordinance was even more clearly invalid. See id. at 95–96, 516 S.E.2d 296.

Two points about this division of Statesboro must be noted. First, the majority went well out of its way to reach the state constitutional issue and make new law on the scope of Georgia's free speech guarantee. The Court had already found the ordinance unconstitutional under the United States Constitution, so finding it to be unconstitutional again under the Georgia Constitution was gratuitous. Indeed, Justice Hines did not join this division of the majority opinion, see id. at 96, 516 S.E.2d 296, and Justice Carley's dissent noted that the trial court had addressed only the First Amendment challenge to the ordinance and had not cited the Georgia free speech clause or any case law applying it, which normally means that the Court would not address the state constitutional challenge on appeal. See id. (Carley, J., dissenting).

Second, other than citing the Miller dictum, which as discussed above was supported by no authority or reasoning, and the Clark dissent, which is not precedent even for the application of the First Amendment, the Statesboro majority cited no...