Requirement That Individuals Obtain Permits Before Using Sound-Amplifying Devices Imposes A Prior Restraint On Speech

CATEGORY: Public Education Matters
CLIENT TYPE: Public Education
DATE: Jan 27, 2020

Joseph Cuviello protested the abuse and mistreatment of animals by circuses and other entertainment entities. Cuviello wanted to protest outside Six Flags Discovery Park in Vallejo, California, using a bullhorn to amplify his voice over the sound of rollercoasters and other park attractions.

The City’s Municipal Code governs the use of sound-amplifying equipment.  To use sound-amplifying equipment individuals must submit an application to the chief of police along with a fee. The application required the applicant’s name, contact information, and basic information about the event. The code required the chief of police to act within ten days of receiving the application. After obtaining the permit, the applicant can only use a sound amplifying device between specific hours, at limited locations, with a maximum power level, and not to amply profane, lewd, indecent, or slanderous speech.

After Cuviello became aware of the permit requirement, he initially did not use a bullhorn when protesting. At another protest, he applied for a permit but never received a reply from the chief of police. At a subsequent demonstration, a police officer approached Cuviello and told him he could not use his bullhorn without a permit.

Cuviello filed a lawsuit against the City alleging violations of his free speech rights under the United States Constitution and California Constitution. Cuviello also asked the trial court for an order preventing the City from enforcing the permit requirement, called a preliminary injunction. To obtain a preliminary injunction preventing the City from enforcing the permit requirement, the Court required Cuviello to show that: (1) he was likely to succeed on the merits on his state or federal claims; (2) he was likely to suffer irreparable harm in the absence of the Court’s intervention; (3) the balance of equities tips in his favor; and (4) the Court’s intervention was in the public interest.

The trial court denied the preliminary injunction concluding that Cuviello had not established a likelihood of success on the merits of any of his claims. The trial court also held that the City’s permit requirements were justified as permissible time, place, and manner restrictions on speech in a public forum. Cuviello appealed.

On appeal, the Court found that the City’s permit system must satisfy four criteria. First, the permit system could not delegate overly broad discretion to a government official. Second, the system could not be based on the content of the message. Third, the system must be narrowly tailored to serve a significant governmental interest. Finally, the system must leave open ample alternatives for communication. Here, the only question was whether the trial court erred in its analysis of the third factor.

The Court of Appeal found that it has long been accepted that sound-amplifying devices can endanger public health, safety, and welfare, so the permit requirement furthered the City’s significant interests. However, the Court found the Municipal Code required a permit for any use of a sound-amplifying device at any volume by any person at any location—without any specifications or limitations. Without any limitations that tailor the permit requirement to circumstances where public peace and traffic safety are actually at risk, the permit requirement covered substantially more speech than necessary to achieve its ends. Accordingly, the trial court erred in concluding Cuviello was unlikely to succeed on the merits of his state constitutional claim.

Additionally, the Court found that Cuviello showed the City’s permit requirement violated and continued to violate his free speech rights. For example, after a police officer warned Cuviello that he could not use his bullhorn without a permit, Cuviello stopped using his bullhorn, making his speechless effective in front of a noisy theme park. Furthermore, failure to comply with any Municipal Code requirements constituted either a misdemeanor or infraction, subject to potential criminal penalties. The Court found that although the City had not initiated enforcement action against Cuviello, the threat of enforcement was enough to chill Cuviello’s free speech rights, which demonstrated irreparable harm. The Court was not persuaded by the City’s argument that Cuviello did not face irreparable harm because he delayed filing the lawsuit against the City for more than a year after he learned of the permit requirements.

Finally, considering the City did not present evidence that its significant interests in regulating the use of sound-amplifying devices would be seriously hampered by a ruling in Cuviello’s favor, the trial court should not have found the balance of equities tipped in the City’s favor. The Court also found that because Cuviello raised a valid free speech claim and demonstrated that the permit requirement caused irreparable harm, it was within the public interest for the Court to issue a preliminary injunction.

The Court reversed the trial court’s denial of Cuviello’s motion for a preliminary injunction and sent the case back to the trial court for further proceedings.

Cuviello v. City of Vallejo (2019) 944 F.3rd 816.