Opera Singer’s Free Speech Claims Against Va. City Move Forward

By Mary Anne Pazanowski

An opera singer arrested while singing “Ave Maria” on an Alexandria, Va., street corner, can proceed with her claims the city’s noise ordinance violates the First Amendment.

The city must defend Krista McClellan’s claims that the it’s noise control code isn’t narrowly tailored to serve the city’s interest in protecting its citizens from unwelcome noise and doesn’t leave open sufficient alternative channels of communication, the U.S. District Court for the Eastern District of Virginia said Jan. 28.

The city also must answer McCellan’s claim that the code is unconstitutionally vague, the court said. The code contains some provisions that use standardless language and has multiple and overlapping types of noise regulations that may be hard for people to understand, it said.

McClellan’s performances on public sidewalks in Alexandria’s central business district constituted core First Amendment activity, the court said. The city thus could limit only the time, place, and manner of this activity through restrictions that were narrowly tailored to serve its interests.

McClellan’s factual allegations supported her claim that the code didn’t meet that standard, the court said. She said, for example, that her performance fell within the code’s 75-decibel threshold, wasn’t dangerously loud, disturbing, annoying, or disruptive, and took place in a location with significant foot and motor vehicle traffic and other nearby performers.

The court said some of the code’s provisions had passed constitutional muster in other cases. These included provisions prohibiting noise that annoys “a reasonable person of ordinary sensibilities,” it said.

But other code provisions have been found “constitutionally problematic,” it said. These included provisions prohibiting “unreasonably loud, disturbing, or unreasonable noise,” it said.

Kirkland & Ellis LLP represents McClellan. Buchanan Ingersoll & Rooney PC represents the city.

The case is McClellan v. City of Alexandria, E.D. Va., No. 1:18-cv-1083, 1/28/19.