The city of Boise’s ordinance that restricts the use of megaphones is likely unconstitutional, according to an April 29 district court order in the Sierra Club’s lawsuit challenging several Boise noise ordinances.
The national nonprofit’s lawsuit, filed April 2, alleges that Boise’s noise ordinance has been selectively applied, pointing to instances in which police arrested or cited people who were protesting police killings and anti-abortion legislation. The Sierra Club said in the suit it has censored itself due to “fear of enforcement.”
Judge David Nye put a preliminary injunction in place last month, preventing the city of Boise from using the megaphone ordinance against the Sierra Club.
The Sierra Club called the partial injunction an “initial victory” and said it would allow the use of megaphones during a Youth Climate Action event. At that rally, on April 19, Instagram video from the event shows at least one person with a blue megaphone outside the Capitol.
The city of Boise said it does not comment on ongoing lawsuits.
“Because the Megaphone Restriction likely runs afoul of constitutional guarantees, Sierra Club faces potential irreparable harm from the infringement of its rights under the First Amendment,” the court wrote in its order.
NOISE RESTRICTIONS IN PARKS
However, the city’s restrictions on noise in parks are likely constitutional, the order said.
Boise City Code §7-7A-5(D)(4) requires permits for activities in parks that include amplified sound.
However, the Sierra Club lawsuit said there is nothing written that restricts Boise’s ability to deny or place conditions on a permit and no requirement for Boise to give the reason for a denial or conditions.
The court disagreed.
Legal doctrine advises against “finding” constitutional problems. This means that when a judge reviews a law, they should find that the law is constitutional , if they can. Basically, looking on the bright side of things.
Boise’s parks ordinance doesn’t include a permit approval process. However, the court chose to view that as meaning there is automatic approval instead of reading it as the government having discretion on which permits to approve.
There are also no exceptions to the park restrictions, so the restrictions affect everyone regardless of their message and are therefore “content-neutral.”
Another city code, §7-7A-7(C), says that people can’t operate private radios or sound amplification devices except by permit in certain areas. There are certain exceptions, including for those amplifying sound on municipal, school, religious or public property with the approval of the property owner.
The city of Boise argued this was location-based and still content-neutral.
However, the court did not agree.
For example, if a church and a neighboring bakery hold a bake sale, they would be speaking the same message in the same location, but only the church could use a megaphone, the order said, because its property is exempt from the sound-amplification restrictions.
This means the restriction is based on “speaker identity,” the court said. The specific exemptions are most likely to be used by government or religious actors and their messages, the court said, reflecting a content preference.
If the city was really interested in protecting citizens from noise, it would drop the exemptions, the court said.
“Ultimately, the Court does not question the value of well-intentioned governmental or religious messages,” the court said. “It simply fails to see a content-neutral justification for giving those messages preferential treatment over the messages of businesses, protestors, or street performers.”
NOISE CITATIONS
Since 2019, Boise police have issued 202 noise citations for several different types of offenses, including noise prohibition on a public right of way or street, according to data obtained through a public records request.
Police issued 32 citations in both 2019 and 2020, which jumped to 62 in 2021 and fell again to 25 in 2022.
Last year, police issued 48 citations. This year, through mid-April, Boise police had issued three citations.
The Sierra Club’s lawsuit sought to stop enforcement of the codes, a declaration that the laws are unconstitutional and for Boise to stop publishing those ordinances without notice of their unconstitutionality and unenforceability, among other things.
“Sierra Club has shown that it is likely to succeed on the merits of its challenge of the Megaphone Restriction,” the court said. “On the other hand, Sierra Club has not shown that it is likely to succeed on the merits of its challenge of the Park Restrictions.”
The court needs to make a ruling on the full lawsuit if the ordinances are to be struck down, a Sierra Club spokesperson previously said in an email.
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