[JPL] Students appeal for right to play music

JASSavannah jassav at comcast.net
Wed Jan 14 13:57:04 EST 2009

Students appeal for right to play music
Walter C. Jones | January 14, 2009 
Savannah Morning News 
ATLANTA - In a debate that could flare up in any college town, two University of Georgia students are asking the Georgia Supreme Court to rule that an Athens ordinance against loud noise violates their constitutional right to free speech, but a Clarke County lawyer says their lawsuit is riddled with technical flaws.

The discussion included questions about whether whistling and yodeling are considered music or merely behavior and if playing CDs in a language foreign to the students was constitutionally protected personal expression.

Students Robert Manlove and William Hoffman were never charged with violating the noise ordinance, but their attorney Chuck Jones said they intend to play music loud enough to violate it. He said that because they have a right to free expression, they should be entitled to a day in court to prove the ordinance is unconstitutionally vague because it limits volume to the same level in all parts of town regardless of the nature of the neighborhood or whether it's in a commercial area.

They didn't get a day in court, however, because Clarke County Superior Court Judge David Sweat dismissed their lawsuit in July 2008. He ruled Jones could not prove Manlove and Hoffman had been harmed by the ordinance because they were never charged.

So Jones appealed to the Supreme Court, which heard oral arguments Tuesday, although a decision isn't likely for six to eight months.

Jones wants the high-court justices to look at the case as a free-speech issue because he said people can challenge laws that limit their freedom of expression without having to break the law first. If the justices view it merely as a noise ordinance, there is precedent for siding with the city.

Trying to sort out whether the sounds played by a resident qualifies as music or noise would be a mistake, Jones said.

"To require a particularized message behind a piece of art or music would conscript judges to the role of music critic or art critic," he said.

The seven justices raised so many questions for Jones that Chief Justice Leah Sears took the rare step of extending the time beyond the allotted 20 minutes for him to make his case. The types of questions might suggest the judges weren't buying Jones' argument.

"It looks like you are trying to apply a very loose standard for (legal) standing (to sue) that could apply to any ordinance at any time," said Justice George Carley.

Jones agreed, but later during her time before the court, Assistant County Attorney Amy Gellins warned such a loosening of legal standards could jam the courts with suits.

Gellins said if there was no one harmed by being charged with violating the ordinance, then there is no one who can challenge the ordinance in court. Besides, she said, Jones didn't even include a copy of the ordinance in his lawsuit.

That prompted a question from Justice Robert Benham.

"In the absence of the filing of the ordinance, Benham asked, "is there anything for the (Athens) government to defend?"

"No, your honor," Gellins said.

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