ACLU Urges Howell to Respect Local Musician's Free Speech

August 17, 2010

HOWELL, Mich. –The American Civil Liberties Union of Michigan wrote a letter today urging Howell city officials to respect the free speech rights of a local musician and allow him to perform in public.

In June, Joseph Flanders, a lifelong Howell resident and musician, was told by police he was violating the city’s noise ordinance by performing for customers outside of a Dairy Queen. Joseph received permission from the owner to perform and, by all accounts, was praised by customers. In fact, many Howell residents have been vocally supportive lobbying city officials to allow Joseph to perform and even offering to pay for his fines if he ignored police threats.

“Censorship of musicians is nothing new. For centuries, government officials have attempted to silence musicians. However the U.S. Supreme Court has made it clear that playing music in public is not a crime,” said Jessie Rossman, ACLU of Michigan staff attorney. “Music is a constitutionally protected form of expression and our sidewalks are traditional public forums.”

For nearly three months, Joseph, who plays a variety of instruments including the guitar and piano, performed for Dairy Queen customers twice a week. Joseph did not use an amplifying system in public and his music was no louder than the cars passing by. Joseph is a tool and die maker who was forced to go onto disability due to complications from pneumonia.

Citing an anonymous complaint, two police officers approached Joseph in June ordering him to end his performance or face a fine under the city’s noise ordinance. In order to avoid a citation, Joseph immediately stopped playing. Within a week, he attempted to apply for a permit that would allow him to continue performing without police interference. However, he was told by city officials that there was no such permitting process and that he could not play music downtown.

In its 6-page letter, the ACLU of Michigan warned that the city’s noise ordinance and its ban on musical performances downtown are unconstitutional. As it is currently written, the ordinance prohibits noise throughout the entire city, every day of the year, at all times of the day and at any level of volume that might “annoy or disturb” any person in the vicinity. Courts have routinely struck down such noise ordinances because they are too vague and because they make innocent speech illegal.

“Under the overly broad language of Howell’s noise ordinance,” wrote the ACLU, “children playing hide and go seek, a woman whistling to her dog or an elderly man listening to a radio broadcast of a baseball game at a loud volume, could all be fined.”

The ACLU of Michigan also contends that the ordinance is not “content neutral” because an individual can request a permit to play Christmas music on public sidewalks; but there is no permitting process available for any other type of music.

To read the letter sent to Howell city officials, click here.

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