No First Amendment right to preach at high volume

A guy was preaching on the street at the top of his lungs, running afoul of the local noise ordinance. The police officer told him that he was allowed to preach, but that he had to lower his voice. The preacher insisted he had to preach the gospel with a loud voice, so the officer issued him a written warning. The preacher sues under the First Amendment.

The case is Costello v. City of Burlington, decided on February 14. The preacher, Costello, loses the case. The ordinance itself was deemed constitutional by the Court of Appeals some years ago. His only argument is that the officer's directive to lower his voice violated the Constitution.

So long as the government is not restricting speech to stifle content, it can usually get away with that restriction. We call this "time, place and manner," which means the content-neutral restriction is legal unless it burdens substantially more speech than necessary to keep the peace or the speaker has no reasonable alternative to get his message out. Costello cannot overcome the lenient time, place and manner test. The order to "keep it down" was not overbroad because Costello's voice could be heard more than 350 feet away on a quiet but busy street where people are trying to get on with their lives without someone screaming out the gospel. Moreover, he had other ways to preach the gospel. As Chief Judge Jacobs writes, "Costello protests that he is denied the opportunity to preach at the top of his lungs, to 'cry aloud' and 'lift up his voice like a trumpet.' It is obvious that this cannot be done in the time and place it was done and in a manner that respects the interests and rights of his fellow residents."

This is not a remarkable decision. Costello argued it pro se. I am not sure a lawyer would feel comfortable telling the Court of Appeals that someone has the right to scream and yell the gospel on a public street. What makes the decision interesting is the concurring opinions. Judge Calabresi wants no part of Judge Jacobs' response to Judge Pooler's concurrence, in which she suggests that the case is not open-and-shut, in part, because (unlike here) cases permitting noise restrictions usually involve mechanical amplification. Although she is sympathetic to street preaching, "which has a long history in this country," Judge Pooler would rule against Costello on qualified immunity grounds because any reasonable officer would believe it was not illegal to tell Costello to put a lid on it.

Judge Jacobs thinks that Judge Pooler is misreading a Supreme Court opinion from 1949, Kovacs v. Cooper, 336 U.S. 77, on the amplified/unamplified distinction. A concurrence in Kovacs ought to set Judge Pooler straight, Judge Jacobs writes, adding:

The plurality in Kovacs should be a corrective to a common fallacy of judicial thinking of which Judge Pooler’s concurrence is an apt illustration. Judges tend to overvalue the rights and interests of persons who bring constitutional litigation, while discounting to zero the rights of non-litigious persons whose interests are likewise affected and at stake--here, people who want to enjoy one another’s company at lunch, at home, or walking down the street; people who communicate by exchanging civil words; people who want to collect their thoughts while doing business and shopping; people who want to take in their choice of music, or worry, or think thoughts. This is a form of myopia.