Corvallis Alternatives to War|Opinion

Mr. Ellison was charged with violating a city ordinance prohibiting certain loud noises. The case was tried on May 12, 2005 and I took the matter under advisement to complete legal research on issues raised at trial. Mr. Ellison had previously moved to dismiss the charge against him on constitutional grounds. That motion was denied by order dated February 23, 2005, because I found the ordinance was not unconstitutional on its face, but Mr. Ellison was granted leave to raise those constitutional issues at trial. ORS 135.640.

The facts in this case are not in dispute. On December 29, 2004, at approximately 5:30 p.m., at the 100 block of NW 4th Street in front of the Benton County Courthouse, Mr. Ellison was playing a drum. He intended his playing to be an antiwar protest. It was part of a demonstration involving other people with similar feelings, who had convened at the same time and location on a daily basis for the past three years to protest the United States involvement in the wars in Iraq and Afghanistan. The drumming could be heard across 4th Street, at a distance greater than 50 feet. It did not provoke violence or public confrontation of any kind. It is significant that the drumming took place at a time and location where it is reasonable to expect some increased noise (increased traffic, people leaving work, etc.) rather than, for instance, later in the evening in a residential area.

Corvallis Municipal Code 5.03.030.020.10 prohibits "playing, using, or operating any ... musical instrument... in such a manner as to be plainly audible ... at a distance of 50 feet from the source of the sound." Mr. Ellison argued that being prosecuted under the ordinance was a violation his constitutional right to free speech under the First Amendment to the United States Constitution. The First Amendment applies to the states, and to city ordinances, through the due process clause of the Fourteenth Amendment to the United States Constitution. De Jonge v Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed 278 (1937). Mr. Ellison does not base his argument on the free expression and speech rights granted in Article I Section 8 of the Oregon Constitution.

The city noise ordinance is content neutral, and the city has a significant interest in promoting peace and quiet in the community. Therefore, as mentioned above, I do not find the ordinance is unconstitutional on its face. However, unless there are reasonable regulations of time, place and manner, this ordinance cannot be applied to prosecute conduct that is otherwise constitutionally protected. See United States v Grace. 461 U.S. 171,103 S.Ct. 1702, 75 L Ed.2d 736 (1983). Playing a drum in the context of a clearly identified antiwar demonstration in a public forum is expressive conduct protected by the First Amendment. United States v Doe, aka Diane Nomad, 968 F.2d 86, 296 U.S. App.D.C. 350 (1992).

When viewing Mr. Ellison's case in a constitutional framework, there is no significant difference from the Nomad case. I find the Nomad decision persuasive. The Corvallis noise ordinance prohibits all sounds that meet the listed criteria, and it makes no attempt to include regulations, or tailor its restrictions, so as to achieve the city's interest in peace and quiet and still allow constitutionally protected expression. Under the facts of this case, CMC 5.03.030.020.10 is unconstitutional when applied to Mr. Ellison's conduct, which was speech protected by the First Amendment to the United States Constitution.

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