Loud music from cars

[Volokh, Eugene]

        State v. Hendrix, 2001 WL 672833 (Ohio. App. June 18), upholds
Hendrix's conviction under an ordinance prohibiting "excessive sound from
motor vehicles"; his car stereo could apparently be heard as much as two
blocks away.

        I think most people who've been subjected to such noise must
viscerally support such a holding, but I was a bit puzzled by the court's
rejection of Hendrix's vagueness challenge: "when, as in the present case,
the First Amendment is not implicated, a void for vagueness challenge must
be examined in light of the facts of the case at hand" rather than on its
face.  How is the First Amendment "not implicated" when someone is
prosecuted for playing music (even playing it too loudly)?

        Likewise, the court acknowledges that "the unfettered discretion
granted to law enforcement officials in the application of the ordinance" is
"troublesome":  "Containing no objective distance or decibel standard to
guide police officers in its enforcement, the ordinance is highly
susceptible to selective enforcement and prosecution."  Despite this, the
court rejected claimant's challenge:  "Appellant's conduct was clearly
poroscribed . . . and there is no indication or allegation that the
ordinance was selectively applied to appellant."  But how could appellant
have shown that the ordinance was selectively applied?  He had no way of
knowing what other cars the police didn't ticket -- the point of the ban on
excessively discretionary speech restrictions (even facially content-neutral
ones) is that there's a risk of content-based application, but no way of
fighting such content discrimination on a case-by-case basis.

        Any thoughts on this?

        Eugene
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20010622/6b82692f/attachment.htm