Reeves v. McConn, 78-3570

• Decision Date: 24 November 1980
• Docket Number: No. 78-3570,78-3570
• Citation: 631 F.2d 377
• Parties: Gary REEVES, Plaintiff-Appellee, v. Jim McCONN, in his official capacity as Mayor of the City of Houston, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 377

631 F.2d 377

Gary REEVES, Plaintiff-Appellee, v. Jim McCONN, in his official capacity as Mayor of the City of Houston, Defendant-Appellant.

No. 78-3570.

United States Court of Appeals Fifth Circuit.

Nov. 24, 1980.

John G. Lione, Jr., Charles M. Williams, Robert J. Collins, Asst. City Attys., Houston, Tex., for defendant-appellant.

Henry A. Popkin, Matthew Horowitz, Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before RUBIN, HENDERSON and REAVLEY, Circuit Judges.

REAVLEY, Circuit Judge:

The plaintiff below, Gary Reeves, seeks to disseminate certain political and educational views among the people of Houston, Texas, through the use of sound amplification equipment. Houston regulates such activity in section 29-6(a) and (b) of the city's Code of Ordinances, which requires in subsection (a) that one obtain a permit and in subsection (b) that one comply with specific restrictions on the use of sound amplification equipment outside of buildings or residential property. ¹ Reeves filed this action challenging the restrictions contained in subsection (b) on the grounds that they are an unconstitutional infringement of free speech protected by the First Amendment. The U.S. District Court for the Southern District of Texas found the restrictions to be unconstitutional because of overbreadth and vagueness and enjoined the city from enforcing them. The City of Houston appealed. We affirm in part and reverse in part.

I. The Standing Issue

The City of Houston first attacks the jurisdiction of the district court on the grounds that no "case or controversy" under Article III exists because subsection (b) has never been enforced against Reeves or anyone else. In the first place, the record indicates otherwise. On June 1, 1978, the office of the city tax assessor and collector denied Reeves a permit to operate a sound truck in the downtown district during the week of June 1-7, and the only authority for that refusal was subsection (b). In the second place, the Supreme Court has often rejected the rule of standing that would require a plaintiff to submit to arrest or point to the arrest of another before he may challenge the subject ordinance in federal court. See, e. g., Babbit v. United Farm Workers, 442 U.S. 289, 297-299, 99 S.Ct. 2301, 2308-09, 60 L.Ed.2d 895 (1979); Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 745, 35 L.Ed.2d 201 (1973). When the challenged statute has not yet been enforced by the state, the proper question is whether the plaintiff faces a "realistic danger of sustaining a direct injury as a result of the statute's operation and enforcement." The injury must not be hypothetical, abstract, or speculative. Babbit, 99 S.Ct. at 2308-09.

The record below contains abundant evidence that Reeves' fear of prosecution or direct injury is not in the least hypothetical. He engaged in conduct prohibited by subsection (b) both before and after the district court enjoined the enforcement of the ordinance. At trial Reeves alleged a desire to use sound equipment in ways that would violate each of the provisions of subsection (b). ² Conversely, the city gave strong indications that subsection (b) is "not moribund," Doe v. Bolton, 410 U.S. at 188-89, 93 S.Ct. at 745-46, when it re-enacted and strengthened that subsection and actually enforced subsection (a) against Reeves, both shortly before this suit was filed. ³ These parties present a live and concrete dispute, and the district court properly has jurisdiction. ⁴

II. The Constitutionality of Section 29-6(b)

A. Supreme Court Precedents and Standards

1. Municipal Regulation of Sound Amplification

The power of municipal governments to regulate the use of sound amplification equipment first came before the Supreme Court in Saia v. People of State of New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574 (1948). Saia recognized that the use of sound amplification equipment within reasonable limits is an aspect of free speech protected by the First Amendment. Id. at 561-62, 68 S.Ct. at 1150. The right to communicate inherently comprehends the right to communicate effectively. The mere existence of an alternative means of expression-in this case, unamplified speech-cannot by itself justify a restraint on some particular means that the speaker finds more effective. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 758 n.15, 96 S.Ct. 1817, 1823 n.15, 48 L.Ed.2d 346 (1976); Linmark Associates, Inc. v. Township of Willingboro, 431 U.S. 85, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1971).

At the same time, the Court recognized in Saia that when the exercise of First Amendment rights infringes on legitimate state interests, a city may enact narrowly drawn statutes regulating the time, place, and manner of such activities. 334 U.S. at 562, 68 S.Ct. at 1150. Courts then have the task of balancing the legitimate community interests protected by such statutes against the infringement of First Amendment rights, "(b)ut in that process they should be mindful to keep the freedoms of the First Amendment in a preferred position." Id. Thus the Supreme Court in Saia invalidated a city ordinance which vested in the chief of police uncontrolled discretion to grant or withhold permits for the use of sound amplifying equipment, because such an ordinance could be used to suppress First Amendment rights far more severely than could be justified by the city's narrow interest in preserving the tranquility of the community against excessive noise.

Less than one year later the Court upheld a Trenton, New Jersey, ordinance which prohibited the operation on city streets of any sound amplification equipment making "loud and raucous noises." Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949). The plurality opinion again emphasized the "preferred position of freedom of speech," but found that "the need for reasonable protection in the homes or business houses from the distracting noises of vehicles equipped with (loud and raucous) sound amplifying devices justifies the ordinance." Id. at 89, 69 S.Ct. at 454. Although the exact nature of the original holding in Kovacs is obscured by several conflicting opinions, ⁵ it has been cited by the Court on numerous occasions for the principle announced in the plurality opinion: that the Trenton ordinance was a reasonable regulation of the manner in which First Amendment rights are exercised. See, e. g., Young v. American Mini Theaters, Inc., 427 U.S. 50, 63 n.18, 96 S.Ct. 2440, 2449 n.18, 49 L.Ed.2d 310 (1976); Virginia State Board of Pharmacy, 425 U.S. at 771, 96 S.Ct. at 1830.

The judicial task in balancing such regulations against the exercise of First Amendment rights was more fully discussed in Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), which involved a statute prohibiting picketing that "disturbs or tends to disturb" schools. The analytical starting point is that government has no power to restrict free speech because of its content, but "reasonable 'time, place and manner' regulations may be necessary to further significant government interests, and are permitted." Id. at 115, 92 S.Ct. at 2302. The court must "weigh heavily the fact that communication is involved" and require that the regulation "be narrowly tailored to further the State's legitimate interest." Id. at 115-17, 92 S.Ct. at 2303-04. "Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity." N.A.A.C.P. v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338 (1963). The statute must "represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society." Broadrick v. Oklahoma, 413 U.S. 601, 611-12, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830 (1973).

2. Overbreadth

If, at the expense of First Amendment freedoms, a statute reaches more broadly than is reasonably necessary to protect legitimate state interests, a court may forbid its enforcement. But the Supreme Court has cautioned that invalidation of state laws for facial overbreadth is a remedy that should be applied "sparingly and only as a last resort." Broadrick, 413 U.S. at 613, 93 S.Ct. at 2916. Accordingly, we will label a provision of the Houston ordinance unconstitutional only if a limiting construction could not readily be placed on the challenged section, Dombrowski v. Pfister, 380 U.S. 479, 491, 85 S.Ct. 1116, 1123, 14 L.Ed.2d 22 (1965), and if the overbreadth of the challenged provision is both real and substantial. Broadrick, 413 U.S. at 615, 93 S.Ct. at 2918.

3. Vagueness

Several provisions of subsection (b) were also challenged and invalidated for vagueness under the due process clause of the Fourteenth Amendment. The traditional standard of unconstitutional vagueness is whether the terms of a statute are so indefinite that "men of common intelligence must necessarily guess at its meaning and differ as to its application." Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). See also Hynes v. Mayor and Council of Borough of Oradell, 425 U.S. 610, 620, 96 S.Ct. 1755, 1760, 48 L.Ed.2d 243 (1976). This standard is applied even more strictly to statutes that inhibit free speech because of the value our society places on the free dissemination of ideas. Id. at 620, 96 S.Ct. at 1760. With these standards of review in mind, we turn to the specific provisions of section 29-6(b).

B. Restrictions as to Time and Place

Subparagraphs 1, 2, and 5 of the ordinance restrict the time and place of the use of sound amplification equipment. Subparagraph 1 prohibits all sound amplification in the downtown business district except for certain hours on Sunday. Subparagraph 2 prohibits all sound amplification throughout the city between 7:00 p. m. and 10:00 a. m. daily and between 10:00 a. m. and 1:00 p. m....