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>> 139 5 A New Constitutional World and the Illusory Ideal of Neutrality A New Constitutional World The Supreme Court’s decision in Saia v. New York, along with the other Jehovah ’s Witness cases of the 1930s and 1940s, ushered in a new constitutional world. During the nineteenth and early twentieth centuries, noise had primarily been regulated as a public or private nuisance. Complainants had to demonstrate that an offending sound interfered materially with their reasonable enjoyment of property or the ordinary comfort of life and that it could be expected to affect all ordinary hearers in the same way. By the middle of the twentieth century, most U.S. cities had adopted a more systematic approach to regulating noise by crafting broadly applicable municipal antinoise ordinances. The majority and dissenting opinions in Saia all authorized this course by affirming that such ordinances pursued a legitimate state interest. Yet the Court also made clear that this interest in reducing noise had to be weighed against the First Amendment rights of noisemakers, including rights of free speech and religious free exercise, which were now to be enforced against municipal and state actions. The Court’s decision in Saia emphasized that cities could not prohibit the use of amplification devices altogether, but they could impose reasonable restrictions, provided that they did so in a way that was deemed neutral with regard to content. This decision was consistent with Cantwell v. Connecticut , in which the Court had ruled that cities could not prohibit religious groups from preaching or disseminating their views, but could regulate the time, place, and manner of engaging in such activities in order to “safeguard the peace, good order, and comfort of the community.” Taken together, these cases began to define the constitutional parameters within which religious noise could be regulated, yet they still left many important questions unresolved . What specific standards would be deemed reasonable for differentiating acceptable sound from unwanted noise, for example? How would courts strike a proper balance between respecting the rights of noisemakers and the rights of unwilling listeners? How could they ensure that complaints about 140 > 141 this interference with his privacy by loud speakers except through the protection of the municipality.” Following Saia, Reed agreed that cities could not simply ban the use of amplificatory devices altogether, but he differentiated the Kovacs case by noting that Trenton’s ordinance offered a reasonable standard for regulating sound trucks that had been absent in Lockport’s statute. While “loud and raucous” might seem overly abstract, Reed explained, these words “have through daily use acquired a content that conveys to any interested person a sufficiently accurate concept of what is forbidden.”2 Reed hardly spoke for a united Court, however. While his decision garnered a plurality of votes, only two of his colleagues actually agreed with his rationale. The other six justices failed to see any distinction between the Kovacs and Saia cases, for they interpreted Trenton’s statute not as applying only to sounds deemed “loud and raucous,” but as “an absolute prohibition against the use of sound amplifying devices.” Justices Frankfurter and Jackson each wrote concurring opinions in which they joined the Court’s decision but reaffirmed the principles of their dissenting opinions in Saia. They continued to maintain that loudspeakers posed a distinct threat that warranted distinct legislative redress. “Only a disregard of vital differences between natural speech, even of the loudest spellbinders, and the noise of sound trucks would give sound trucks the constitutional rights accorded to the unaided human voice,” Frankfurter maintained. Conversely, Justices Black and Rutledge each wrote dissenting opinions in which they reaffirmed the principles of Justice Douglas’s majority opinion in Saia. “A city ordinance that reasonably restricts the volume of sound, or the hours during which an amplifier may be used, does not, in my mind, infringe the constitutionally protected area of free speech,” Black explained. “It is because this ordinance does none of these things, but is instead an absolute prohibition of all uses of an amplifier on any of the streets of Trenton at any time that I must dissent.” The Kovacs opinions thus evinced continued disagreement about whether amplified sound might inherently constitute noise, but they offered relative consensus on other questions. They all agreed that cities had a substantial interest in regulating noise, provided they could do so according to contentneutral standards. They also suggested that “loud and raucous” might offer just such a reasonable standard.3 Three years later, the Court took...

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