Is sound ordinance unconstitutional?

Paul F. P. Pogue

Protestors from the Justice for Janitors campaign demonstrate with a recent "death in" outside of Wellpoint on Monument Circle.

A hearing in federal court this Friday will determine the next steps in a suit asking that the City-County Code's noise ordinance be enjoined.

The Indiana Civil Liberties Union, working on behalf of the Service Employees International Union and the Justice for Janitors campaign, filed suit in November, asking that section 391-302 of the City-County Code, which prohibits "loud, unnecessary or unusual noise," including yelling and the use of musical instruments, be permanently enjoined.

In an affidavit with the court, SEIU lead organizer Rebecca Maran stated that Indianapolis Police Department officers had reprimanded picketers on dozens of occasions and issued several citations. The downtown protests have been ongoing since mid-2005.

ICLU attorney Jacquelyn Bowie-Seuss said that sections of the ordinance are overly vague and broad and should be permanently enjoined.

"The city would need to write new portions to make it more understandable," Bowie-Seuss said. "It uses words like 'you can't make unnecessary noise,' 'unusual noise' or noise that disturbs or annoys people. That's all very vague. What annoys one person will not annoy another. It's going to lead to discriminatory enforcement by law enforcement. What it needs is something that talks about noise volume or level, something that's objective."

Though the suit is connected to the Justice for Janitors campaign, Bowie-Seuss said that the case was based on principle and not specific tickets or charges. She also noted that settlement is being negotiated with the city, but declined to comment on details.

"We don't have any facts that would make us believe that it's being aimed particularly at them," Bowie-Seuss said. "The problem is it's so subjective. It's basically arbitrary. They may be cited on one street, but two streets down, they may be doing the same thing. A couple of people got tickets, a couple of people who were involved in the Justice for Janitors. Those are resolved, but obviously they want to be able to continue to protest, to be able to protest in the future. But right now they have no idea what's expected of them and what would violate the noise ordinance."

Andy Mallon, corporation counsel handing the case for the city and county, said that constitutional law allows municipalities to regulate noise, based on a substantial government interest in providing safety and a comfortable environment. However, he did agree with some of the ICLU's complaints and confirmed that negotiations and changes are possible.

"The ICLU has made some points that we think are legitimate," Mallon said. "Our ordinance is somewhat outdated. I don't think it's been changed since 1975. We will be working on it and proposing changes."

But Mallon noted that the injunction would interfere with the city's ability to enforce the law, and so they will be going to court this week to fight the injunction.

"What the ICLU has asked for is a complete injunction of the guts of our ordinance," Mallon said.