Maybe it's legal to sing in a park?

by Becky Johnson
January 13, 2011

People of the State of California vs. Becky Johnson
Cal Note: SCTo73906 infraction

Note to reader: This is my personal account of the hearing written shortly afterward from my notes. Much of it is my best attempt at a transcript of what I heard said intermingled with a few clarifying comments. ---Becky Johnson

Santa Cruz, Ca. -- In the appeal of my conviction for singing on Pacific Ave. last January 6th, I thought that singing a few songs in the Free Speech Zone in the middle of the afternoon in my normal, unamplified voice would be protected free speech. I was wrong.

This is a case where the City acted to prevent the disturbance of the sleep of a 31-yr-old man napping in the middle of the day inside his own apartment located on a busy, urban corridor. The City had to have concluded I was guilty in order to send in a City attorney to argue for my prosecution, since the charge was based solely on the complaint of one citizen. I went before a three-judge appeals panel consisting of Judge Paul Burdick, Judge Timothy Volkmann, and Judge Ariadne Symons. Symons had replaced Judge Jeff Almquist, because he could not be expected to rule impartially on his own verdict. Symons is considered impartial.

Representing the People of California was City Attorney Caio Arrellano, paid for by the City Attorney's office. My attorney was Ed Frey. In court, observing the proceedings were Robert Norse of Free Radio Santa Cruz, Steve Pleich, former and future city council candidate, Linda Lemaster, Ailene Smith, Free, and two reporters from City on a Hill Press.

Judge Paul Burdick announced that no recording would be allowed in court "because any such request must be made in writing five days prior to the hearing." I'm not aware of any such rule. I'd always understood that whether to make a recording or not depended on the discretion of the judge. Burdick then announced that they had no such equipment immediately available to make a recording. Robert Norse, jumped up from the audience, and offered to make a personal recording. Burdick quickly denied him.

This mirrored my original trial last April where I HAD gone through the process ahead of time and secured the agreement with the court that an official recording would be made of the proceedings. In that case, Almquist reversed that order and refused to allow any official recording to be made. Refused two motions to make a recording for broadcast purposes and a 2nd recording request to make a personal recording. Almquist made sure that NO recording of the proceedings would be made.

During our attempts to make a settled statement on my case (since a transcript was NOT an option thanks to Almquist!) , Almquist insisted that citizen complainant, Sean Reilly, had identified me as the person who he saw singing. He didn't. He testified that "she has pretty hair" and that "I saw her running around with a videocamera so I knew she was one of the group."

When Ed Frey asked Sean Reilly under oath whether he had been physically annoyed by my singing, he answered "No." Yet Almquist ruled that I was guilty "BECAUSE Reilly had been physically annoyed" when he couldn't take his nap. Almquist never ruled on whether I had been singing for a too prolonged period of time. No wonder.

Almquist had heard six eyewitnesses testify to impeach Reilly's testimony that "we had been playing since 11AM" a period of "about four hours." Ed Frey had introduced hard copy of a notice HUFF had placed on Indybay on January 5th stating that our demo would not begin until 1:30PM. Lloyd Ellis testified that he saw Joe Schultz hand a pot of soup to Robert Norse around 1:30PM and no one else in our group was there, and no one was singing. Tony Kuspa had testified that he arrived at 1:45PM and the only person there from our group at that time was Robert Norse. I arrived later. Coral Brune and Free (his legal name) testified that they arrived together at 2PM and I was not yet there. Robert "Blindbear" Facer testified that he arrived shortly after 2PM and I was not yet there. All of us testified that our music was not especially loud and certainly not unreasonable.

There is NO WAY that Almquist could not have had reasonable doubt about the statements that Reilly made in court that "the same people had been playing music since 11AM". Reilly also testified that he "heard a guitar". No one in our group played a guitar at any point. Yet Almquist had found me guilty, believing Reilly over 7 eyewitnesses, and fined me $250 for having made "an unreasonably disturbing noise."

Now I was appealing to a higher court.

Ariadne Symons led the panel by claiming that "the panel has carefully considered" all the briefs, cases cited, and "had done their own research." Frey asked for a tentative decision and Symons said "no."

Frey began by pointing out that in the City's brief, at one point Arrellano had quoted the ordinance with semicolons in the appropriate place, but that later on, when trying to make a different point, quoted it differently.

"The City Attorney can't have it both ways,"Frey argued. "A plain reading of the ordinance with proper placement of punctuation shows that unreasonable noises must be physically disturbing and physically annoying to persons of ordinary sensitivity."

"The point I'm making is that ordinance is so vague that the prosecutor varies from one version to another in the brief in front of you. We don't have any evidence a person of ordinary sensitiveness was disturbed."

Judge Paul Burdick was the first to respond. "Your notion that if someone sleeps during the day they are not a person of ordinary sensitiveness--well--we reject that. They ARE a person of ordinary sensitiveness. We had considerable pre-trial discussion on this."

Ed Frey continued. "The court must consider that Ms. Johnson had to understand the ordinance in order to follow it. The police officer walked by five minutes earlier and did nothing. When asked to say how loud is too loud, she refused to say."

Ariadne Symons then spoke. "Mr. Reilly testified that the other residents were disturbed. THEY were unreasonably disturbed. He was not the only one." Symons was willing to believe the imagined testimony of a neighbor who didn't testify over that of 7 witnesses who all testified that yes, we sang, but it wasn't three or four hours, it wasn't continuous, it wasn't prolonged, and it wasn't done in any attempt to disturb any tenant from napping."

Judge Timothy Volkmann spoke for the first time. "What is it you intend to argue? Reasonableness? Location? Time of day?"

"The entire context," Frey responded.

Volkmann: "The singers were in an area where they could potentially affect people where they live."
Frey: " I could argue a whole line of cases which support the concept that if you can't go to the marketplace in your own town and, to quote one of our forefathers, "make ourselves heard above the din" then, we don't have any freedom of speech at all." And I ask all three of you justices that if you can't sing on a public sidewalk on Pacific Ave., then where is it that you CAN go and sing songs that protest political injustice?"

Ariadne Symon was reassuring. "Of course singing hasn't been outlawed on Pacific Ave. Perhaps if they walked down the street and didn't sing in just one place, there wouldn't be a problem. Of course, the way Pacific Ave. is designed, there are offices and residences on the second floor up and down the avenue."

Frey: "A strong line of cases argue that a person sleeping in their own home can be protected from commercial intrusion into their privacy, but they are not protected against intrusion by political or religious contacts. Besides my client was making reasonable noise, not blaring over a microphone."

"Are there no cases which found that a restriction on singing is valid?" Symons asked, looking like the cat that ate the canary. "Magden vs. Womens Health Clinic ordered protesters outside an abortion clinic from "singing, whistling, shouting...."

Frey: "Your honor, we didn't have an operating room here. This was on a busy, shopping mall in the middle of the afternoon. I ask again, where else are they to go and express themselves except on the mall? Where is it that we are allowed to express our first amendment rights?"

"Certainly you have your first amendment rights to freedom of speech, peaceable assembly, and the right to redress government grievances. But we must also balance that versus the right of the residents to the quiet enjoyment of one's home," Burdick explained. "It's well understood that the entire 2nd story is occupied by people by people who live there; people like Ms. Johnson."

"In Ire vs Boon in PC 415, which is a misdemeanor for disturbing the peace, the court ruled that the noise section wasn't written to prohibit all loud noises. Only those that met one of two conditions. It must either be speech that causes a clear and present danger of imminent violence---such as shouting "fire" in a crowded theater and there is no fire. Clearly this was not the case with Ms. Johnson."

"The second condition is that the noise must be purported to be used as a guise to disturb and annoy a person. There is no evidence before the court to suggest that Ms. Johnson was singing in an attempt to annoy or harm Mr. Reilly."

"That is not the law we are considering here today," Symons coldly responded.
Frey: "So the State of California has to comply with this strict test of whether they get to say a noise is unreasonably disturbing or not and the City of Santa Cruz just gets to get away with it?"

Without prompting, Judge Timothy Volkmann addressed an issue not made. "We're not complaining about the CONTENT of her speech. But the right of an individual to speak has to be balanced against the right of an individual to the quiet enjoyment of their home."

I shook my head at this statement by Volkmann. How could Sean Reilly be disturbed for "Three and a half to four hours" by my singing and NOT hear any of the lyrics? Officer Lauren Schoenfield had had the same amnesia problem. Neither of them 'heard' any of the lyrics to our songs. How could that be reasonable? Either they heard us and were annoyed or didn't hear us loud enough to even distinguish any words. But in this court, neither Reilly nor Schoenfield hear any of our lyrics to this case was ONLY about how loud or long our NOISE was.

But Frey was prepared for this. "Brown clearly cover loud noise, even shouting. However, it requires proof of malice which is missing here. "

Ignoring this argument, Burdick insisted "We're obligated to construe the limitations of the applicant. In my view, this does not infringe on freedom of speech as long as it does not impinge..."

"It's a sad day if you can't go to marketplace in your town and speak because you can not be sure that you speech will not be physically annoying to anyone," Frey concluded, clearly angered.

City Attorney Caio Arrellano then took the podium. "About the Kovac case. In affirming the conviction for noise in the case of amplified sound, the court rejected that the appellant had no obligation to consider a citizens right to the quiet repose in his own home. Sorry about the semi-colon..."

"We don't need to hear anything more on that matter," Symons reassured him.

Arrellano continued. "There is some confusion in Inrie vs Brown and its use of 'loud and unreasonable noise.' A city can condemn noise that is "harsh" or "unreasonable" to persons of ordinary sensitiveness."

Symons: "Our panel has spent a great deal of discussion and independent research for this very important case. The issues involves are likewise very important, and involve our basic freedoms. Any limitation of 1st amendment rights to freedom of speech must be specific and narrowly tailored. If we were speaking of an area that was purely commercial that would be one thing. Certainly Pacific Ave. is one of those regular areas where we engage in commerce. But it is not purely commercial. Actually, it is residential as well."

"In Ferndale 2008, a federal case involving a completely commercial intersection, but where a longterm resident lived in that area as well. The court found we have both a right and an obligation to protect both the interests of the residents and the freedoms of speech so that a person does not have a fundamental right to speak in any place, at any time, or in any manner."

"Madison in Geader vs Rockford, their noise ordinance was upheld claiming that speech, even political speech is not limitless in a place where people live. It is not a pure right, but a tempered right. As in this case,where the record shows that they were singing for three hours straight, the trial court found that the speech was prolonged as it was in this case. "

"You say ask where it is that we can have our rights? Well perhaps if the singers had traveled and not sung in one place for three hours. Or if they chose to sing in a City park away from residences, then we would have a different set of facts to consider, in that potential case."

"So I the panel finds that the ordinance is constitutional as applied. The appeal is denied."

Frey: "I have one additional important question. Can this panel certify this case to appeal it to the next court of appeal?"

"You've exhausted your appeal, " Volkkmann added.

"We rarely do that," Symons answered. I was surprised too. I was under the impression that in the case of an infraction, I was allowed only one level of appeal by law. But Ed had found that this was not necessarily the case.


"We'll take that matter under advisement and rule on it later," Burdick concluded.

Commissioner Kim Baskett Verdict in Facer-Norse Song Trial

Citizen complainant, Sean Reilly, on April 27, 2010 outside of the Santa Cruz County building, awaiting one of dozens of court appearances he made as a witness against Robert Norse, Robert "Blindbear" Facer, and blog editor, Becky Johnson. Photo by Becky Johnson.

Transcript of the Baskett Sentencing Hearing

Verdict by Commissioner Kim Baskett

Robert Facer, Robert Norse v. City of Santa Cruz

re: unreasonably disturbing noise citation January 6, 2010

Tuesday Sept 21 2010

(transcribed from audio by Robert Norse and Becky Johnson)

We are here today for the ruling in the Robert Facer, Robert Norse matter in which they've been cited under a municipal code of the city of Santa Cruz for violation of the noise ordinance. And 9.36.020 is the unreasonably disturbing noise ordinance.

The citation was signed by Mr. Reilly, who's present in court. Mr. Norse is present in court. Mr. Facer, represented by counsel, Ed Frey, is present in court. I wanted to assure all of you that I've given the case law as well as the facts a great deal of consideration. And I've spent a long time personally looking at these issues. I know that it's really important to all of you that these issues be resolved once and for all.

Present now in the courtroom is the city attorney as well, Mr. Arellano, and also Mr. Frey's assistant, Ray Glock-Grueneich.

All right. So, one of the most essential points being made by the defense for himself, Mr. Norse and Mr. Frey for his client Mr. Facer is that the ordinance is so vague that it defies an ordinary person's ability to understand what is required under the law.

I spent a long time looking at noise ordinances across the United States and in various communities,

and looking at the legal authorities. And I find that specifically this ordinance is not void for vagueness because of the terms that are being used unreasonably disturbing and using the ordinary sensitiveness or person with ordinary sensitiveness that I find that it is not void for vagueness

What I want to say specifically is that in my hearing of the testimony I find that there is an unwillingness, there was an unwillingness, I think, to accept anything but a decibel reading as a criteria-- something certain-- That there is no requirement anywhere that simply because there (?) to take a decibel reading that governmental entities have to default to a decibel reading.

They have the ability to decide whether they're going to use a descriptive ordinance or a combination of decibel readings, or all decibel readings. And they have it within their purview to decide how they will do their enforcement. So just because there is a physical means of measuring noise, it does not dictate--specifically according to case law—that they must use a decibel meter.

This is next thing that I want to say and point out to people that are present in the courtroom that have been so interested in the free speech rights of those who are singing and playing on the mall, and which has risen to an issue of Constitutional importance in this case because these particular singers were protesting the political environment in the City of Santa Cruz, especially the downtown area on Pacific Garden Mall. That their first amendment free speech rights were seemingly implicated or curtailed. What appeared to them to be erratic enforcement of this statute.

They mentioned that after this ticket was enforced against them, they felt that their free speech rights were chilled they didn't want to go down and engage in that activity on the mall—no singing behavior--they were afraid they were going to get a second citation.

I have to say to you straightforwardly that the evidence before me at trial was that before this trial was heard, that activity was engaged in again. So these particular defendants, it seemed to me when I heard the evidence, didn't have...it didn't have a chilling effect on their ability to go ahead and to perform the same activity on the mall.

I want to say and point out that the First Amendment to the Constitution, the United States constitution as well as the California Constitution does provide freedom of speech, but it's not curtailed. And the effort that I made to point out the Koekaa case which is already in our record with the case cites-- I won't belabor it here, because I have other cases that I need to hear--was that what I wanted to hear argument about was to what extent does a person wishing to engage in their free speech right get to dictate the manner of conveying their message.

And what I did find specifically is you don't get the best most ideal way of conveying your message as long as there are alternative channels left open to you. And I find specifically that day there were channels left open to still have the message with regard to the plight of the homeless left open to people who were willing to hear.

I also want to say that I'm convinced that in great part the effort to send that message that day was to reach someone inside Bookshop Santa Cruz. And thus necessarily it should have been clear in the minds of the protesters that they were going to be reaching residents. And frankly it's not disputed that the government has an interest in protecting the quiet repose of persons in their homes.

And so that's the juxtaposition of the tension here. To what extent does Mr. Reilly have the ability to say “enough is enough”? And I'm finding that the case is made here. And that both Mr. Facer and Mr. Norse, because they were engaged as members of HUFF in planning this demonstration are guilty of violating the quiet repose of this gentleman.

I was asked to consider that a day sleeper is not a person of ordinary sensitiveness, and I'm not deciding this case on the basis of the fact that he was trying to fall asleep. We must remember that I heard that he kept his windows closed; he turned on his air; he put on white noise. It is not a requirement, I find, in the case law that a person in their home has to be subject to free speech. In other words, there are a number of cases that regulate that protected activity, your ability to speak out on political issues. But the person in their home doesn't have to be subject to that.

So those--the proximity to the residents--is something that I took into consideration. And I did pay heed to the case which said that you couldn't keep peddlers--or whatever you want to term them. People who wanted to ring the doorbell—and convey their ideas about religion etc. to the individual homes. And the court in that particular case referred to by Mr. Norse, said no it is sufficient for the homeowner to put on the front of their residence a warning that they don't want to be disturbed.

We don't need to curtail the ability of the person who is going door to door to talk about the religious beliefs. We don't need to curtail their freedom.

But in this circumstance, you have in this building 124 single resident occupancies. This building has been here for decades— I myself have been here running a business since 1976 Pacific Ave. That building predated our building. It did get damaged during the earthquake and after the earthquake there was a huge homeless problem. And our homeless person has probably doubled and tripled since then.

But I find and -- said in during trial--that I find it highly ironic that people who are protecting the rights of those who cannot sleep at night because they are disturbed constantly by ordinances that basically require them to move along are thinking that it's okay to disturb people who are in low or very low income housing.

Only124 units, and it's one of the few handful of units in this county for people of low or very low-income housing.

So I'm deciding in this circumstance...those are some of the reasons that I'm taking to articulate to you that there was no vagueness, that these folks anticipated that they would likely get cited, and that was the testimony before me. There was no political speech going on because Mr. Kuspa had already decided “good grief, we're singing let it snow; I'm not even singing with the group and I'm going to start looking at the table”.

They were not asked...they were not told to stop all forms of educating the public. They could still pamphlet, interview, take signatures on a petition. Their tabling process was fine.

It was just that they couldn't continue to make noise which frankly, folks, included musical instruments and amplification, even though I heard testimony that it wasn't over-loud. I could not credit that testimony. The evidence revealed to me that that noise was heard from some distance away by various different accounts. And really this gentleman only lives about 20' up and over from where the singing was taking place.

So. Therefore I am finding both defendants guilty because they caused, permitted, suffered, allowed, that to occur by their organization, participation of their organization in the event.

I note that in this courtroom, the fine is $445. And I often listen to persons wishing to make an explanation

and allow volunteer service to be conducted...I don't want to necessarily curtail that opportunity if there's someone that wishes to speak about that.

Last time I offered volunteer service in a case such as this, it was declined because that couldn't be recouped if the decision of the bench officer—myself here—was overturned on appeal, which...I'm anticipating this definitely will be appealed. That's why I, we have the recording system.

Is there any expression from your client, Mr. Frey, or from you, Mr. Norse, about the fine amount?

Frey: No, your honor, we will pay the fine.

Baskett: And you, Mr. Norse?

Norse: In a previous case, which was also an infraction ... she understood that potentially required community service, not on a unreasonably disturbing noise charge, but on something else, She was willing to suspend that pending an appeal, which was eventually lost. And I did community service. I wonder if that's a possibility in this case.

Baskett: You're asking the court to render judgment and suspend imposition of the fine until the resolution of the appeal?

Norse: Right I want to do community service, cause that's what I eventually did. She sentenced me to community service and then said she suspended that pending appeal. That's what eventually happened.

Baskett: Okay, they might have a better way to keep track of that upstairs. They take notes and if you look at their minute orders, it's really clear. We don't What I would suggest is that I will go ahead and grant your request and consider that it's one for suspending imposition of the fine and then if indeed the appeal is lost, then you can just come in and ask for volunteer service. And then you'll have thirty days to go sign up. Is that...?

Norse: That's fine.

Baskett: All right. So that will be ordered. And I see Mr. Frey, I see you're asking your client something. Did you want me to waive..?

Frey: Yes, we want that same treatment, your honor.

Baskett: Okay. So what we'll do is we'll impose the fine of $445. And then we'll suspend the fine, imposition, until such time as the appeal is decided. And then that at that time, once the court gets the resolution on the appeal, the fine will be imposed. You'll have some time frame in which to come back and just ask for a conversion to volunteer service.

Norse: We'll also, ask your honor.if I had anything to say regarding the fine itself.

Baskett: Okay

Norse: Your honor may recall during the testimony that though you ruled that in fact you felt that we could anticipate that there might be concerns about the residents—and in fact, we'd never had such concerns before in terms of them being presented to us They weren't presented to us in this case. In other words, no one informed us until the moment when Officer Schoenfield arrived. So we didn't really have... The only advance warning we had was her arrival and then we stopped what we were doing. So given that as a consideration, we weren't intending to disturb anyone. And in fact, I think actually we tried to be relatively sensitive to that as I pointed out in my testimony You disagreed with that, perhaps. But that would be one of my reasons for asking that either the fine be reduced or waived, whatever you eel would be appropriate.

Baskett: Okay, well I understand what you're saying. I'm specifically finding, and I thought I made it clear that the testimony that I heard was testimony from Mr. Facer that there was discussion at HUFF, that you actually believed that you were going to be cited when you were out there.

I think that you intended that to occur by the activity that occurred when the officer approached. To wit, when the officer approached, what I heard was a cacophony of noise And I heard testimony from Free that it even occasioned someone to open up windows and shouting that ensued. In other words, my impression from your own witnesses' testimony was that the noise level increased dramatically upon the contact with the cop...officer. Nevertheless, be that as it may, I will reduce the fine amounts to $250 apiece, suspend their imposition until the conclusion of the appeal. Thirty days after the appeal is finalized, the fines will be due subject to either one of your or both coming into court asking for volunteer service, at which time, I guarantee you, I will allow.

Norse: Thanks

Baskett: So then this matter is completed, I appreciate all of your time.