McClellan v. City of Alexandria

An opera singer arrested for singing on the streets of Alexandria may proceed on claims that the arrest violated her First Amendment rights and that the city ordinance she was said to have violated is void for vagueness.

Alexandria’s Noise Control Code contains two sets of regulations: One applying to the entire city, and another applying only in an area known as the “central business district,” where the plaintiff was singing. There are also two types of standards for unlawful noise within the central business district: a decibel threshold to be measured with an approved device from more than 10 feet away and a statutory presumption based on “normal hearing acuity.” The best reading of the Code is that people making noise in the central business district are subject to liability under both the city-wide and district-specific provisions.

The plaintiff’s performances on public sidewalks in Alexandria’s central business district are core First Amendment activity, and she has adequately alleged that the Noise Control Code is not narrowly tailored to serve the City’s interest. She alleges that her performance was not dangerously loud, disturbing, annoying, or disruptive, but rather was pleasant, relatively quiet, and appreciated by many of the passersby-including the City’s former mayor. Further, the performance took place in the central business district, a place with significant foot and motor vehicle traffic, businesses, pedestrians, and even other performers.

These allegations, if proved, would indicate that she was arrested while making noise below the ordinance threshold, which gives the lie to defendants’ claim that all she had to do to comply with the ordinance was to lower her volume. Moreover, the Noise Control Code could nonetheless deprive her of ample alternative channels if the threshold was unreasonably low and thus precluded her from exercising her First Amendment right to speak (or sing) freely in a reasonable way.

As to the plaintiff’s vagueness claim, the Noise Control Code includes some provisions employing vague, standardless language that may fail to satisfy the notice and separation-of-powers principles undergirding the vagueness doctrine. It also contains multiple and overlapping types of noise regulations that may prove difficult for laymen to understand.

Motion to dismiss granted in part and denied in part.

McClellan v. City of Alexandria, No. 1:18cv1083, Jan. 28, 2019. EDVA at Alexandria (Brinkema).

Categories: Opinions, U.S. District Court - Eastern District of Virginia

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