THE NEXT CASE ON OUR DOCKET IS THE STATE OF FLORIDA V. CATALANO. IF YOU WILL JUST HOLD FOR A COUPLE SECONDS HERE. PLEASE PROCEED.

Transcription

1 THE NEXT CASE ON OUR DOCKET IS THE STATE OF FLORIDA V. CATALANO. IF YOU WILL JUST HOLD FOR A COUPLE SECONDS HERE. PLEASE PROCEED. >> CHIEF JUSTICE CANADY AND MAY IT PLEASE THE COURT, I'M TIM OSTERHAUS ON BEHALF OF THE STATE OF FLORIDA. BOTH THIS COURT AND THE U.S. SUPREME COURT HAVE RECOGNIZED THAT AMPLIFIED NOISE CAN BE A DANGEROUS DISTRACTION THAT THREATENS THE SAFETY OF MOTORISTS AND THAT GOVERNMENT MAY TURN DOWN THE NOISE -- >> IF YOU COULD STILL SPEAK UP A LITTLE LOUDER -- [LAUGHTER] A LITTLE MORE AUDIBLE. >> ABSOLUTELY. ABSOLUTELY. >> SHE'S WITHIN 25 FEET. [LAUGHTER] >> MORE THAN 20 YEARS AGO, THE LEGISLATURE PASSED A LAW RESTRICTING NOISE ON THE STREETS -- >> A QUESTION ABOUT THAT. WHEN THEY DID THAT, WAS IT FIRST AT 100 FEET, 50, AND THEN IT WENT DOWN TO 25? >> IT WAS FIRST, JUSTICE PARIENTE, IT WAS FIRST AT 100 FEET, AND IN 2005 IT WAS AMENDED DOWN TO 25 FEET. >> 25. WAS THERE ANY -- AS FAR AS THE STATEMENT AS TO WHY IT WENT FROM 100 TO 25 FEET? >> YEAH. THERE WAS NOTHING IN THE LEGISLATIVE HISTORY THAT I COULD FIND THAT INDICATED THAT. I MEAN, OFTEN SOMETHING HAPPENS OUT THERE THAT PROMPTS THE LEGISLATURE TO DO SOMETHING LIKE -- >> WOULD YOU SUSPEND FOR A MINUTE? WE NEED TO HAVE THE DOOR CLOSED. WE NEED TO HAVE THE DOOR CLOSED, AND WE NEED TO HAVE QUIET IN THE COURTROOM.

2 >> THANK YOU. >> YOU CAN PROCEED NOW. >> EXCUSE ME. OFTEN THERE IS A PRECIPITATING FACTOR, BUT I COULDN'T FIND WHAT THAT WAS IN THE LEGISLATIVE HISTORY. THE LEGISLATIVE HISTORY SEEMS TO BE BARE ON WHY IT WAS MODIFIED TO 25 FEET. >> IF THE GOAL IS SO THAT, FIRST OF ALL, YOU SHOULD BE ABLE TO TALK TO PEOPLE IN THE CAR OR THE VEHICLE AND NOT DISTURB PEOPLE THAT ARE OUTSIDE THE VEHICLE. I MEAN, SO I GUESS THE QUESTION IS HOW, WHAT -- YOU WERE SORT OF TELLING WHAT THE GOAL IS. >> SURE. I THINK THE PRIMARY GOAL IS SAFETY. IT'S SO THAT THE DRIVER, PRIMARILY SO THAT THE DRIVER CAN HEAR WHAT'S GOING ON, SO THAT THE DRIVER CAN HEAR IN THAT COCKPIT, THAT THE MUSIC ISN'T TURNED UP SO LOUD THAT IT CAN'T HEAR EMERGENCY VEHICLES OR WHAT'S GOING ON AROUND THEM. IT'S INTERESTING WHERE IN THIS -- >> HOW IS IT ANY SAFER FOR SOMEONE MAKING A POLITICAL SPEECH? STILL LOUD, STILL DRIVING A VEHICLE. >> WELL, THE POLITICAL SOUNDTRACKS OFTEN WILL HAVE LOUDSPEAKERS THAT ARE DIRECTED OUTWARD. AND ALSO THE CONTEXT IN WHICH THEY, IN WHICH THEY OPERATE IS GENERALLY THEY'RE SLOW MOVING AROUND COURTHOUSES OR PUBLIC PARKS, THEY'RE NOT UBIQUITOUS. THEY'RE NOT ON THE STREETS, ON ALL STREETS ON U.S. 1 OR U.S >> WELL, NOTHING TO STOP THEM FROM BEING THERE. >> WELL, THEY'RE SUPPOSED TO BE STOPPED, BUT I THINK THE LEGISLATURE LEGISLATES IN THE REAL WORLD, AND THEY SEE WHERE THESE THINGS ARE OPERATING AS

3 FAR AS A STATE LEVEL CONCERN, AS FAR AS A STATE LEVEL CONCERN, THE LOCALITIES DO REGULATE THESE TYPES OF VEHICLES. BUT AS FAR AS THE STATE LEVEL IS CONCERNED, THESE VEHICLES AREN'T OPERATING AT ALL HOURS, THESE VEHICLES AREN'T OPERATING ALONG STREETS. >> SO IT'S NOT FOR NOISE POLLUTION? I THOUGHT IT WAS THAT I DIDN'T HAVE TO HEAR THE BOOMBOX THAT'S IN THE VEHICLE. WHAT YOU'RE SAYING IS, IT'S TO PROTECT THE DRIVER OF THE VEHICLE FROM NOT HEARING WHAT IS AROUND, OR IS IT BOTH? >> WELL, I THINK IT'S PROBABLY BOTH. I THINK PRIMARILY, THOUGH, IT'S DRIVER SAFETY. IF YOU LOOK AT , DRIVERS CAN'T HAVE A TV ON THE DASHBOARD; , THEY CAN'T BE WEARING HEADSETS. THE IDEA HERE IS THAT THEIR SENSES ARE THERE SO THAT THEY CAN -- >> BUT SO IF DRIVER OF A VEHICLE DIDN'T HAVE THE SPEAKER INSIDE THE VEHICLE BUT SOMEHOW PUT IT OUTSIDE THE VEHICLE, THAT WOULD BE OKAY? >> WELL, THE STATUTE SAYS FROM WITHIN THE VEHICLE. UM, SO -- >> WELL, LET'S SAY THE SPEAKER IS DIRECTED FROM THE INSIDE, BUT IT'S OUTSIDE SO I CAN HEAR EVERYTHING GOING ON, BUT I WANT EVERYONE TO HEAR MY FAVORITE SONG THAT'S PLAYING ON THE RADIO. >> SURE. AND THEN I CAN ONLY GO BY THE TEXT OF THE STATUTE WHICH SAYS, UM, THESE SOUND-MAKING DEVICES FROM WITHIN -- >> IF I PUT MY BOOMBOX ON TOP OF MY CAR, IT'S OKAY? >> WELL, PER THE STATUTE, THE STATUTE, AGAIN, IT SAYS "WITHIN THE VEHICLE." I THINK THAT WOULD BE MORE AKIN

4 TO WHAT YOU SEE WITH THE POLITICAL SOUNDTRACKS OR EVEN WITH YOUR BUSINESS EXCEPTIONS WHICH ARE, THE ONLY THING I CAN THINK OF IS AN ICE CREAM TRUCK. THAT THERE, AGAIN, THE SOUND IS PROJECTED OUT FROM THE VEHICLE. THE DRIVER IN THAT VEHICLE ISN'T NECESSARILY BEING BOMBARDED BY THIS, THESE SPEAKERS THAT ARE DIRECTED RIGHT AT HIM. >> WELL, BUT IT'S GOING TO MAKE A DIFFERENCE AS TO WHETHER THERE'S A VIOLATION, WHETHER THE WINDOWS ARE UP OR DOWN. >> ABSOLUTELY. >> SO THAT'S, THAT'S A FACTOR. LET ME ASK YOU THIS, I'M TRYING TO UNDERSTAND THIS EXCEPTION OF THE BUSINESS AND POLITICAL EXCEPTION. I UNDERSTAND THE WAY YOU'RE ARGUING THIS. IT IS FOCUSED ON PARTICULAR TYPES OF VEHICLES. >> THAT'S CORRECT. >> IT'S NOT WHETHER IT'S POLITICAL SPEECH GOING ON, BUT WHETHER IT'S A PARTICULAR VEHICLE THAT IS PUTTING FORTH SOMETHING. >> ABSOLUTELY. >> SO, BUT THE NOTION IS THERE ARE SOME VEHICLES THAT PUT OUT POLITICAL MESSAGES AS KIND OF A PART OF THEIR BUSINESS. IT'S WHY THEY ARE THERE. >> CORRECT. >> WELL, WHY? WHY SHOULD SOMEBODY BE ABLE TO PUT OUT A POLITICAL MESSAGE THROUGH A VEHICLE LIKE THAT WHEN THEY CANNOT BROADCAST A POLITICAL MESSAGE JUST FROM THEIR CAR IF THEY WANT TO? >> WELL, I THINK -- >> I MEAN, ISN'T THIS CREATING A DISTINCTION BETWEEN SOME PEOPLE PUTTING OUT A POLITICAL MESSAGE AND OTHER PEOPLE WHO MIGHT ALSO WANT TO PUT OUT A POLITICAL MESSAGE, NOT TO MENTION A RELIGIOUS MESSAGE OR SOMETHING ELSE? >> WELL, SURE IT DOES.

5 BUT THE STATE HAS A SUBSTANTIAL INTEREST IN SAFETY, SAFETY ON THE ROADS. AND THIS COURT HAS SAID THAT AND BACK IN THE HEADLEY CASE, THE SUPREME COURT HAS SAID THAT IN THE KOVACS CASE. THIS SAFETY ISSUE IS A -- >> I GUESS I'M STILL HAVING -- COULD I -- AND I'M SORRY, I'M STILL HAVING TROUBLE WITH WHAT I THOUGHT WAS THE PURPOSE AND WHAT YOU'RE SAYING IS THE PURPOSE. IF THE STANDARD IS "PLAINLY AUDIBLE AT 25 FEET," AS WAS JUST SAID, YOU KNOW, IT COULD DEPEND ON WHETHER THE WINDOW'S DOWN OR UP. THAT ISN'T GOING TO BE THE FACTOR THAT'S GOING TO DETERMINE WHETHER I CAN HEAR WHAT'S GOING ON WITHIN MY VEHICLE AND OUTSIDE THE VEHICLE. >> WELL, THE LEGISLATURE, IT IS SOMEWHAT OF A LINE-DRAWING EXERCISE. AND I THINK WHAT THE LEGISLATURE, THE LEGISLATURE RECOGNIZES THIS AND, OF COURSE, EIGHT OR NINE MONTHS A YEAR PEOPLE DO HAVE THEIR WINDOWS UP, THEIR AIR CONDITIONERS ON, AND I THINK THE LEGISLATURE'S THOUGHT THERE IS, WELL, UNDER THOSE CIRCUMSTANCES IF YOU CAN HEAR THIS MUSIC THREE CAR LANES AWAY, THEN IS THAT DRIVER GOING TO BE ABLE TO HEAR WHAT'S GOING ON AROUND HIM SUFFICIENT TO OPERATE THE MOTOR VEHICLE SAFELY? >> I JUST, I'M STILL STUCK ON IF THE COMPELLING INTEREST IS PUBLIC SAFETY, HOW IS IT ANY SAFER FOR THE NOISE TO BE COMING OUT FROM INSIDE THE CAR ACTUALLY FROM ON TOP OF THE CAR THAN IT WOULD BE FROM COMING OUT INSIDE THE CAR? IT'S OKAY FOR THE NOISE TO BE EMANATED FROM THE TOP OF THE CAR ON THOSE TYPE OF VEHICLES, BUT IT'S NOT OKAY TO COME OUT FROM INSIDE THE CAR. >> WELL, I THINK IF WE'RE TALKING ABOUT THE INTRUSION

6 FACTOR MORE BROADLY, I WOULD AGREE WITH YOU. BUT NOT NECESSARILY WITH RESPECT TO THE SAFETY FACTOR, THAT THERE'S A SPEAKER, THAT THERE'S A LOUDSPEAKER PROJECTING NOISE OUTSIDE OF THE CAR DOESN'T NECESSARILY COMPROMISE WHAT THE DRIVER'S ABLE TO HEAR IF HE HAS, AS COMPARED TO HAVING HIS STEREO TURNED UP. WERE ALL OF THOSE LOUDSPEAKERS WITHIN THE CAR SORT OF TRAINED FOR THE DRIVER SO THAT THE DRIVER CAN HEAR -- >> THE -- I'VE RECENTLY HAD TO GET MY LICENSE RENEWED AND, YOU KNOW, YOU HAVE TO HAVE A EYESIGHT TEST. I DON'T EVER RECALL HAVING TO HAVE A HEARING TEST. AND ISN'T THE FACT OF BEING ABLE TO HEAR WHAT'S GOING ON AROUND WHICH I GUESS WOULD BE THE EMERGENCY VEHICLES, WOULDN'T THAT BE BASED ON YOUR LEVEL OF HEARING? I MEAN, IF SOMEONE'S ELDERLY OR STARTING TO LOSE THEIR HEARING, NOT SO ELDERLY, THAT'S GOING TO IMPAIR IT. BUT THE STATE OF FLORIDA DOESN'T REQUIRE A HEARING TEST BEFORE YOU GET A DRIVER'S LICENSE. >> WELL, I THINK THAT THE STATE OF FLORIDA HAS SAID THAT HEARING -- THEY DON'T LET YOU WEAR HEADSETS -- >> I'M SAYING ABOUT HEARING. >> SURE. >> YOU KNOW, WE DON'T LET PEOPLE DRIVE WITH THAT. IF YOU HAVE TO WEAR GLASSES, YOU'VE GOT TO WEAR IT, OR IT'S A RESTRICTION. >> SURE. >> THERE'S NO RESTRICTION OR TEST FOR HEARING. >> SURE. AND MAYBE WHAT THEY HAD IN MIND WAS THAT THOSE DRIVERS WHO ARE HEARING IMPAIRED HAVE -- THEY KNOW, THEY KNOW THAT THEY ARE, AND THEIR OTHER SENSES ARE, PERHAPS, HEIGHTENED.

7 THEY TAKE THAT INTO ACCOUNT IN THEIR DAILY LIFE SO THAT THEY CAN -- THEY ACCOUNT FOR IT. >> YOU REALLY THINK THIS WAS -- WAS THAT, WAS THE ORIGINAL MOTIVATION, THE IDEA WHAT YOU'RE SAYING NOW, WAS THE PUBLIC SAFETY OF THE DRIVER? ARE YOU SURE IT WASN'T THAT PEOPLE WERE CREATING NUISANCE BY JUST HAVING LOUD NOISES COMING OUT OF THEIR VEHICLE? >> WELL, I THINK THAT'S PART OF IT. BUT IF YOU SEE, AGAIN, LOOK AT THE TEXT OF THE STATUTE. THE STATUTE TALKS SPECIFICALLY ABOUT NOISE FROM WITHIN THE VEHICLE, UM, AND IT'S, AND IT'S IN THE AREA OF THE CODE WHERE THEY TALK ABOUT TVs, THEY TALK ABOUT HEADSETS, AND THEY EXEMPT THE POLITICAL SPEECH, THEY EXEMPT THE ICE CREAM TRUCKS THAT ARE PROJECTING NOISE OUTWARD, SO IT SEEMS CLEAR THEY'RE GOING AT WHAT IS GOING ON INSIDE THE CAR AND THE DRIVER'S ABILITY TO SAFELY OPERATE THE MOTOR VEHICLE. THAT'S WHAT I SEE -- >> SO THE PRESUMPTION THEN IS IF NOISE CAN BE HEARD WITHIN 25 FEET OF THE CAR, THEN THE DRIVER CAN'T HEAR ANYTHING. IS THAT THE PRESUMPTION THAT'S MADE IN THE STATUTE? >> THAT'S CORRECT. THAT'S CORRECT THAT THE LEGISLATURE HAS -- >> -- [INAUDIBLE] FOR POLITICAL PURPOSES. >> WELL, IT'S VEHICLES THAT, VEHICLES THAT ARE IN THE BUSINESS OF THE POLITICAL SOUNDTRACKS AND THOSE VEHICLES THAT ARE IN THE BUSINESS OF THAT. I THINK IT'S BECAUSE, AGAIN, THAT THEIR OPERATIONS ARE LIMITED. THEY'RE NOT UBIQUITOUS. THEY'RE NOT -- THE RECORD INDICATES, FOR EXAMPLE, THAT

8 MR. CATALANO WAS CITED 7:30 ON A TUESDAY MORNING. >> BUT THERE'S A DISTINCTION HERE BETWEEN FOR BUSINESS OR POLITICAL PURPOSES. SO IT'S SOMETHING DIFFERENT THAN BUSINESS. SO WHY POLITICAL? >> WELL, AGAIN, I THINK IT'S BUSINESS. IT SAYS "SUCH BUSINESS." I THINK "SUCH BUSINESS" IN -- IT REFERS TO, ACTUALLY, BUSINESS AND POLITICAL USES OF THESE VEHICLES. I THINK IT'S BECAUSE, I THINK THE OTHER REASON THAT WE PLACE A HIGH VALUE ON POLITICAL SPEECH. IN FACT, THE ACLU'S AMICUS IS WITH US ON THIS -- >> A CORE FIRST AMENDMENT RIGHT TYPE ISSUE? >> THAT'S RIGHT. IT'S RIGHT AT THE CORE, THE FOUNDING CORE. THE FOUNDERS IN FRAMING THE FIRST AMENDMENT OF POLITICAL SPEECH WAS -- >> BUT RELIGIOUS IS NOT INCLUDED. SO HASN'T THE STATUTE BEEN OVER BROAD BECAUSE IT DOESN'T INCLUDE OTHER THINGS AS EXCEPTIONS? >> WELL, I DON'T THINK SO. I THINK, AGAIN, THAT WHAT THE, UM, WHAT THE LEGISLATURE DRAFTED HERE WAS TRYING TO REACH REAL WORLD, WHAT THEY SEE IN THE REAL WORLD. AND WHAT THEY SEE IN THE REAL WORLD IS THERE ARE POLITICAL SOUNDTRACKS. I DON'T THINK THAT PROBABLY THEY'RE OFTEN SEEN RELIGIOUS SOUNDTRACKS OUT THERE THAT ARE BEING CAUGHT UP IN THIS. I, THAT'S JUST MY SENSE -- >> ISN'T THIS CONTENT-BASED THOUGH? BECAUSE, AND DON'T YOU -- ISN'T THERE AN ISSUE THAT COMMERCIAL SPEECH ACTUALLY IS, HAS INTERMEDIATE SCRUTINY AND SO DON'T WE -- AND, AGAIN, AREN'T WE PLACING A VALUE ON SOMEBODY

9 WHO HAS A, CAN AFFORD TO HAVE A SPECIAL VEHICLE THAT, YOU KNOW, ONE OF THESE BIG MOBILE HOMES OR SOMETHING, THEY CAN GET TO DO IT, BUT IF SOMEONE'S JUST RUNNING FOR AN OFFICE AND THEY WANT TO USE THEIR OWN VEHICLE THAT THEY'RE NOT GOING TO BE ABLE TO DO THAT? >> WELL, I THINK THAT THE ISSUE HERE IS SAFETY. AND WHAT THE LEGISLATURE HAS DONE IS DRAWN A STATUTE AND TRY TO DRAW LINES BASED UPON WHAT WOULD BE UNSAFE, WHAT LEVEL OF NOISE INSIDE THE CAR WOULD BE UNSAFE. THEY'VE NARROWED THEIR STATUTE. THAT'S THE OBLIGATION UNDER THE -- TO HAVE A VALID -- >> SO YOU WOULD AGREE, I MEAN, IT'S CONTENT -- DO YOU AGREE IT'S CONTENT BASED? >> NO, I DON'T. I THINK IT'S BASED UPON THE SAFETY. AGAIN, THESE VEHICLES OPERATE IN LIMITED AREAS, YOUR ICE CREAM TRUCKS, RESIDENTIAL AREAS, AFTERNOONS DURING THE SUMMERTIME OR YOUR POLITICAL VEHICLES THAT CIRCLE THE CAPITOL OR CIRCLE THE COURTHOUSE OR WHAT HAVE YOU DURING CERTAIN TIMES OF THE YEAR -- >> I GUESS I DIDN'T KNOW -- WHEN YOU USED THE WORD "NARROWLY TAILORED," USUALLY THAT GOES ALONG WITH A FIRST AMENDMENT RIGHT OR -- YOU'RE NOT, ARE YOU -- DO YOU -- ARE YOU AGREEING OR DISAGREEING THAT THERE'S ANY FIRST AMENDMENT IMPLICATION IN THE STATUTE? >> OH, WELL, THERE IS A FIRST -- THIS IS A TIME, PLACE AND MANNER RESTRICTION ON SPEECH. >> OKAY. >> THAT'S RIGHT. UM, SO I AGREE WITH THAT. >> ALL RIGHT. AND THEN IT'S SUBJECT TO THE INTERMEDIATE SCRUTINY. >> SUBJECT TO INTERMEDIATE SCRUTINY BECAUSE IT'S

10 CONTENT-NEUTRAL AND BECAUSE IT'S NARROWLY TAILORED AND IT -- >> BUT IF IT'S CONTENT-BASED, THEN YOU WOULD AGREE IT'S THE HIGHER STANDARD. >> IF IT'S A CONTENT-BASED RESTRICTION WHICH WE DON'T THINK IT IS. IT'S TARGETED AT SAFETY, AND THAT'S -- >> YOU KNOW, YOU KEEP GOING BACK TO THE PUBLIC SAFETY REASON FOR THE EXCEPTIONS IN THE STATUTE. I DON'T SEE HOW IT IS SAFER HERE -- POLITICIAN MAKE A SPEECH THAN TO HEAR A PREACHER GIVE A SERMON. YOU KNOW? HOW, WHERE DID YOU DRAW THE LINE? >> WELL, I THINK THOSE AS-APPLIED CASES CAN BE BROUGHT. IF THERE'S AN AS-APPLIED PROBLEM, THIS IS A FACIAL CHALLENGE. THIS ISN'T MR. CATALANO OR MR. SCHERMERHORN'S ISSUE. I THINK WE COULD SPIN HYPOTHETICALS ALL MORNING AND SAY, HMM, THAT'S AN INTERESTING CASE, BUT THAT WOULD NEED TO BE BROUGHT, AND THAT COULD BE VINDICATED, PERHAPS, WHEN IT'S BROUGHT. >> WELL, I DON'T KNOW IF A FACIAL CHALLENGE INVOLVES THE FIRST AMENDMENT, I THINK YOU CAN -- YOU NEED TO LOOK AT ALL -- DON'T YOU HAVE TO DO THAT? >> WELL, SURE. IF THERE'S SUBSTANTIAL OVERBREADTH COMPARED TO ITS LEGITIMATE SWEEP. THE LEGITIMATE SWEEP OF THIS LAW IS, I THINK, PRETTY APPARENT. THAT WE KNOW THAT THERE ARE A LOT OF LOUD CARS OUT THERE THAT ARE DISTURBING, THAT ARE DISTRACTIONS, THAT PRESENT, THAT COULD PRESENT SOME SAFETY ISSUES. I THINK WE ALL SEE THAT OUT THERE. SO LEGITIMATE SWEEP HERE IS

11 VAST. UM, YOU KNOW, THAT THERE'S SOME PROBLEMS AT THE MARGINS OF THE STATUTE, DOES THAT OUTWEIGH THE LEGITIMATE SWEEP? I DON'T THINK SO. I DON'T THINK THERE'S AN OVERBREADTH PROBLEM HERE BECAUSE OF THAT. >> YOU KNOW WHAT -- WHERE THE 25 FEET RESTRICTION CAME FROM? IT USED TO BE 100 WHEN DAVIS WAS DECIDED. WHERE'D THAT COME FROM? WAS THERE STUDIES? >> NO, I COULDN'T FIND ANYTHING IN THE LEGISLATIVE HISTORY ON THAT. >> 25 FEET, WOULD YOU SAY THAT'S ABOUT AS FAR AS YOU ARE FROM ME? >> UM, PERHAPS, MAYBE A LITTLE FURTHER. I THINK IT'S THREE LANES OF TRAFFIC, SO IF NOT THERE, HERE -- [LAUGHTER] OR BACK OVER THERE. [LAUGHTER] >> WELL, THAT TAKES CARE OF MY DAUGHTER'S CAR WHEN I'M AROUND. >> BUT, OF COURSE, THAT'S THE LEGISLATURE'S -- THE JOB OF THE LEGISLATURE IS TO DRAW THOSE LINES, SO THEY TAKE INTO EFFECT -- I MAY NOT BE ABLE TO KNOW EXACTLY WHAT THE 160 LEGISLATORS TOOK INTO CONSIDERATION WHEN THEY VOTED ON THIS, BUT THAT'S THEIR JOB, AND THERE'S BEEN NOTHING IN THE RECORD SUGGESTING -- >> IT JUST SEEMS TO ME 25 FEET, THAT'S PRETTY CLOSE TO JUST ABOUT ANYTHING. IT'S GOING TO BE AUDIBLE FROM 25 FEET AWAY UNLESS YOU ARE WEARING EARPHONES OR SOMETHING. >> WELL, I THINK THAT IF YOU'RE IN A CAR IN FLORIDA WITH YOUR WINDOWS ROLLED UP AND THE AIR CONDITIONER ON, SOMEBODY CAN HEAR IT THREE LANES OF TRAFFIC AWAY, THAT'S PRETTY LOUD IN YOUR CAR. AND SO I --

12 >> BUT THAT'S NOT A LIMITATION. YOU DON'T HAVE TO. >> THREE DIVIDED INTO 25, THAT'S EIGHT YARDS. THAT'S -- BEING A FORMER FOOTBALL PLAYER, I LOOK IN TERMS OF FIRST DOWN. [LAUGHTER] THAT'S REALLY NOT THAT FAR. >> I WAS A KICKER, SO I DIDN'T -- [LAUGHTER] >> ALL RIGHT. EIGHT YARDS. THAT'S WHAT YOU'RE TALKING ABOUT. >> WELL, I THINK STANDING IN ONE LANE OR AT LEAST THE EDGE OF ONE LANE OF TRAFFIC -- >> [INAUDIBLE] >> EXCUSE ME? >> ARE WE EIGHT YARDS AWAY? >> PROBABLY, YEAH. IT'S GETTING CLOSE. UM, AND SO COULD WE FIT A COUPLE OF CARS BETWEEN US? YES. A COUPLE OF LANES, SURE. >> [INAUDIBLE] [INAUDIBLE CONVERSATIONS] >> I THINK, AGAIN, THIS DEMONSTRATES THAT WE'RE QUIBBLING OVER THE MARGINS OF THE STATUTE, BUT THE SUBSTANTIAL REACH -- >> BUT WE'RE TALKING ABOUT THE SPACE AND WHETHER OR NOT IT REALLY MAKES SENSE. >> SURE, SURE. BUT AGAIN, THAT'S A POLITICAL QUESTION THAT THE LEGISLATURE LOOKED AT, AND THEY DECIDED THAT IT DID. THERE'S NOTHING IN THE RECORD. IF THE APPELLEE HERE WOULD HAVE BROUGHT SOMETHING TO THE RECORD TO SAY THAT THAT 25 FEET IS A PROBLEM -- >> WE'RE REALLY TALKING ABOUT THE PLAINLY AUDIBLE AND AS TO WHETHER THAT'S VAGUE OR NOT, OR IS IT -- WAS IT THAT AS WELL AS THE DISTANCE? >> WELL, NO. ACTUALLY, IN THE TRIAL COURT AND

13 THIS STARTED OUT IN THE COUNTY COURT, AND THERE WAS A THREE-JUDGE CIRCUIT COURT. ALL OF THE STUFF WE WERE TALKING ABOUT TODAY WAS PART OF THAT RECORD THEY DIDN'T PASS UPON. >> WELL, WHAT WAS THE CHALLENGE? >> THE CHALLENGE WAS THAT DEPLOYING THE AUDIBLE STANDARD IS VAGUE. AND WE WOULD SAY THAT IT'S NOT VAGUE. IN FACT, IT'S VERY PRECISE. IT SAYS 25 FEET. AN OFFICER WITH UNAIDED HEARING WITH A DIRECT LINE OF SIGHT TO THE CAR WHO CAN IDENTIFY BOTH THE DISTANCE AND THE CAR FROM WHICH THE NOISE IS COMING, IT'S A VERY PRECISE STANDARD. >> AND IF THEY STOPPED, WAS -- THERE WAS SOMETHING IN THE CONCURRENCE. IF THEY STOP THE VEHICLE, THEN IT'S A TRAFFIC STOP, AND THEN THEY CAN PROCEED TO DO WHATEVER YOU DO IN A TRAFFIC STOP. I MEAN, IN OTHER WORDS, IT'S A TRAFFIC VIOLATION JUST LIKE ANYTHING ELSE. >> THAT'S RIGHT. IT'S A NONCRIMINAL -- NONMOVING VIOLATION. IT'S A FINE. >> IN THIS PARTICULAR CASE, AND I GUESS WE CAN HEAR FROM MR. CATALANO HIMSELF, BUT WAS THE NOISE THAT WAS COMPLAINED OF, WAS IT BASS-ORIENTED? WAS THE BASS TOO LOUD OR JUST THE MELODY WAS TOO LOUD? >> THERE'S NOTHING IN THE RECORD, AGAIN, THE CHALLENGES HERE ARE PURELY FACIAL BASED UPON NOTHING. THERE'S NOTHING IN THE RECORD. HE SAID THE CHALLENGE WAS THAT THE PLAINLY AUDIBLE STANDARD IS VAGUE AND OVERBROAD, SO -- >> LET ME JUST MAKE -- ARE YOU, CAN YOU DO A SEARCH OF A CAR ONCE YOU'VE STOPPED IT? BECAUSE OF THE TOO MUCH NOISE? >> I DON'T BELIEVE SO, NO. THIS IS IF THE OFFICER, THE

14 OFFICER 25 FEET AWAY IS ABLE TO VISUALLY IDENTIFY AND HEAR THE CAR, HE WRITES A TICKET -- >> THE SAME THING, THOUGH, AS ANY TRAFFIC STOP. YOU MIGHT BE ABLE TO -- >> IF YOU HAD PROBABLE CAUSE OR FOUND A SUSPICION OR SOMETHING. >> SURE. >> IF YOU SAW SOMETHING. >> TRUE. >> YOU DIDN'T WANT TO SAY IN YOUR LAST 20 SECONDS THAT WE WOULD KNOW IT WHEN WE HEARD IT. [LAUGHTER] >> THAT'S RIGHT. >> YOU HAVE USED ALL YOUR TIME, THANK YOU. HOWEVER, SINCE WE HELPED YOU USE IT, I'LL GIVE YOU TWO MINUTES FOR REBUTTAL. >> IF IT PLEASE THE COURT, RICHARD CATALANO. I'M HERE ON MY OWN BEHALF AND ON BEHALF OF ALEXANDER SCHERMERHORN WHO WAS A CO-DEFENDANT. WE JOINED THE CASES FOR PURPOSES OF APPEAL. >> DOES THE RECORD ESTABLISH WHAT YOU WERE, WHAT YOU WERE DOING? >> WHAT I WAS DOING? I'LL BE HAPPY TO TELL YOU WHAT I WAS DOING. I WAS DRIVING TO WORK PLAYING A SONG. >> JUST PLAYING A SONG ON YOUR RADIO? >> PLAYING A SONG ON MY RADIO ON 22ND AVENUE NORTH OF ST. PETERSBURG. PLAYING A SONG ON MY RADIO. >> COULD YOU HEAR WHAT WAS -- DID YOU HEAR HIM PULL YOU OVER? >> DID I HEAR HIM -- EXCELLENT POINT. YES, I DID. AMAZINGLY ENOUGH, I DID. I DID HEAR HIM PULLING ME OVER. >> WITH THE SIREN? >> HE THREW ON LIGHTS AND A SIREN. >> WHAT? >> HE THREW ON LIGHTS AND A SIREN.

15 I WAS STOPPED JUST FOR A COUPLE OF SECONDS WHILE SOMEBODY CROSSED THE STREET, AND THEN I PROCEEDED. AND THEN ALL OF A SUDDEN BEHIND ME THE LIGHTS GO ON AND THE SIREN GOES ON. I GO, WHAT IS THIS? I PULL OVER AND HERE HE IS, AND I GO, WHAT DID I DO? HE SAYS, YOUR RADIO'S TOO LOUD AND YOU'RE IN VIOLATION OF WHAT? YOUR RADIO'S TOO LOUD. THERE'S A STATUTE ON IT. SO THAT WAS IT. HE PULLED ME OVER. AND I SAID, YOU'VE GOT TO BE KIDDING ME. NO, I'M NOT. AND LICENSE AND REGISTRATION, AND THERE IT WAS FROM THERE FOUR AND A HALF YEARS AGO, AND HERE I AM TODAY. FOUR AND A HALF YEARS LATER. >> AS I UNDERSTAND YOUR CHALLENGE, YOUR COMPLAINT IS ADDRESSED TO THE PLAINLY AUDIBLE -- >> CORRECT. >> -- PHRASE. >> THE PLAINLY AUDIBLE STANDARD, YES. >> AND ARE THERE OTHER DECISIONS, OTHER COURTS THAT HAVE HELD, UPHELD OTHER STANDARDS? WHAT YOU'RE COMPLAINING ABOUT HERE IS NOT LIKING THE APPLICATION OF THE STATUTE, AND YOU DIDN'T KNOW WHAT YOU WERE DOING. BUT REALLY FOR OUR LEGAL ANALYSIS WE NEED TO REALLY GET DOWN TO -- >> OH, CERTAINLY. >> -- TO AREN'T THERE OTHER DECISIONS, OTHER LOCATIONS THAT UPHOLD STATUTES, ORDNANCES? >> YES, YOUR HONOR. >> THAT USE -- >> YES, THERE ARE. >> -- PHRASES THAT ARE EVEN MORE AMBIGUOUS --

16 >> THAT'S WHAT WE'RE GOING TO GET INTO THE ARGUMENT ON IT. >> OKAY, PLEASE DO. >> OKAY. SO ON THE ISSUE OF PLAINLY AUDIBLE, PLAINLY AUDIBLE STATUTE, YES, THERE ARE DECISIONS FROM TOP COURTS IN OTHER STATES SAYING PLAINLY AUDIBLE FROM 75 FEET IS FINE, PLAINLY AUDIBLE FROM -- THERE'S ONE THAT SAYS 5 FEET. I'LL GO THAT FAR. AND THEY SAY EVERYBODY KNOWS PLAINLY AUDIBLE IS 5 FEET, ALL IT WARRANTS IS PASSING REFERENCE. TOO BAD. NOT SO. THERE'S NO REASONABLENESS STANDARD IN THIS STATUTE. THAT IS THE PROBLEM WITH "PLAINLY AUDIBLE." THERE'S NO, IT'S NOT BASED ON A REASONABLENESS STANDARD WHATSOEVER. IT IS VAGUE -- >> I DON'T UNDERSTAND, EXPLAIN THAT. I'M NOT SURE I UNDERSTAND. IF IT'S, IF EVERYBODY UNDERSTANDS THAT PROJECTING -- NOW THAT YOU KNOW THE STATUTE EXISTS -- >> UH-HUH. >> THAT DO YOU -- SINCE FOR FOUR AND A HALF YEARS HAVE YOU NOW LOWERED YOUR RADIO? YOU UNDERSTAND THAT RADIOS CAN BE LOUD ENOUGH TO BE HEARD THREE CAR LANES AWAY? >> WELL, HAVE I LOWERED IT IN THE FOUR AND A HALF YEARS? NO, BECAUSE I'M IN PINELLAS COUNTY, AND NOW IN THAT SECOND DCA -- >> OKAY. WELL, I GUESS WHAT THE POINT IS WHEN YOU SAY REASONABLENESS IS THE STANDARD -- >> RIGHT. >> -- THAT'S NOT, THAT IS NOT A VAGUENESS CHALLENGE, IS IT? VAGUENESS IS WHAT -- WOULD A REASONABLE PERSON KNOW PLAINLY

17 AUDIBLE FROM 25 FEET IS? >> RIGHT. BUT ON THE ISSUE WITH REGARD OR TO PLAINLY AUDIBLE, IT'S VAGUE, IT IS -- IF YOU LOOK AT THE ONES THAT HAVE BEEN PASSED BY THE SUPREME COURT, KOVACS V. COOPER, OTHERS CITED IN THE BRIEF, THEY'RE TALKING ABOUT THE STATUTE WAS LOUD AND RAUCOUS, UNREASONABLY LOUD AND RAUCOUS, UNREASONABLY JARRING, UNREASONABLY -- >> WHY DOES THAT NOT -- IT SEEMS TO ME THAT THOSE ARE FAR MORE AMBIGUOUS THAN THE WORD "PLAINLY." I MEAN, THAT'S A WORD THAT'S USED IN COMMON PARLANCE, USED ACROSS THE, NOT ONLY THE ENGLISH LANGUAGE, BUT THE AMERICAN VOCABULARY. AND AUDIBLE. AUDIBLE IS NOT A, SOME TYPE OF WORD THAT WE HAVE TO STRAIN TO UNDERSTAND WHEN SOMETHING IS AUDIBLE. >> RIGHT. >> CAPABLE OF BEING HEARD. >> THE PROBLEM IS THAT IT IS AN ENTIRELY SUBJECTIVE STANDARD. IT'S BASED ON THE HEARING OF THE PARTICULAR OFFICER AND HIS OPINION ON WHAT IS PLAINLY AUDIBLE OF THE OFFICER WHO HAPPENS TO BE THERE THAT DAY. WHAT IS PLAINLY AUDIBLE TO HIM IS NOT A REASONABLENESS STANDARD. IT DOESN'T HAVE TO DISTURB ANYONE TO BE VIOLATIVE OF THE STATUTE. >> WELL, IN "DISTURBED" YOU GET INTO SENSIBILITIES AND ALL KINDS OF THINGS. TO ME, THAT'S FAR MORE AMBIGUOUS THAN "PLAINLY AUDIBLE." MAYBE IT'S TOO RESTRICTIVE, BUT IT'S CERTAINLY NOT AMBIGUOUS WHEN IT COMES TO -- DO WE KNOW WHEN SOMETHING IS PLAINLY AUDIBLE? >> I THINK IT'S A MATTER OF OPINION, AND IT'S THE OPINION OF A PARTICULAR PERSON THAT IS

18 THERE AT THE TIME. I WOULD SUBMIT THAT PLAINLY AUDIBLE TO ME IS NOT GOING TO BE PLAINLY AUDIBLE TO THE OFFICER WHO PULLED ME OVER. I WOULDN'T CONSIDER IT THAT WAY. >> THE FACT THAT THE STATUTE IS NOT TO PROTECT HIS SENSIBILITIES, BUT TO PROTECT YOUR SAFETY? >> NO, I DON'T ACCEPT IT AT THOUGHT. I WOULD SAY THAT EVERYONE IS GUESSING IN TERMS OF WHAT THE STATUTE IS BASED ON. BECAUSE IT DOESN'T SAY. IT DOESN'T SAY ANYWHERE. I THINK WE'RE ASSUMING THE GOALS OF THE STATUTE. IT SAYS NOWHERE WHAT THE STATUTE IS REALLY TRYING TO GET AS SEVERAL OF THE JUSTICES SEEMED TO MENTION. ALSO -- >> SO IS THAT AN IMPORTANT, I MEAN, IS THAT, IS THAT IMPORTANT FOR OUR CONSTITUTIONAL ANALYSIS? BECAUSE IT SEEMS TO ME THAT IF IT'S RATIONAL BASIS, THEN YOU COME UP WITH ANY CONCEIVABLE REASON, AND YOU GUESS AT IT. >> AND THAT IS -- >> BUT IF IT IS NOT, IF IT'S A CONSTITUTIONAL STANDARD, THEN YOU CAN'T GUESS AT IT. SO WHERE IS, SO WHERE DOES GETTING -- MR. OSTERHAUS JUST GAVE US A REASON THAT APPEARS NOWHERE IN THE LEGISLATIVE HISTORY OR THE HISTORY OF THE STATUTE? >> NOWHERE THAT I HAVE FOUND THAT TALKS ABOUT IT, I WOULD AGREE WITH HIM. >> BUT IT'S IN THE SAME -- ISN'T IT PRETTY COMPELLING THAT IT'S IN THE SAME PROVISION WHERE YOU AGREE YOU CAN'T HAVE HEADSETS WHEN YOU DRIVE, IS THAT -- >> IT'S IN THAT AREA, THAT'S CORRECT. >> YOU CAN'T HAVE TELEVISION, SOME PLACES HAVE NOW OUTLAWED, YOU KNOW, CELL PHONES, YOU KNOW, HAVING THOSE AND, YOU KNOW,

19 LISTENING TO THOSE SO THAT THE DRIVER'S NOT DISTRACTED. >> RIGHT. BUT IF I MAY ON THE VAGUENESS ISSUE, JUDGE MOYLE IN STATE V. MIDDLEBROOKS THAT WAS FILED SAID THE FOLLOWING: IT DOES NOT PROVIDE AN OBJECTIVE, REASONABLE TEST. IT SIMPLY MAKES IT UNLAWFUL FOR AN OFFICER TO HEAR THE SOUND AT A DISTANCE OF 25 FEET OR MORE. AND BASED ON THAT, HE FOUND IT VAGUE. THE SECOND DCA -- >> I JUST, I GUESS MAYBE WE'RE CONFUSING TERMS. >> OKAY. >> BECAUSE A OFFICER UNLESS, AGAIN, THE OFFICER IS, WELL, SOMEONE WHO'S A HARD-OF-HEARING OFFICER ISN'T GOING TO BE ABLE TO HEAR IT AT 25 FEET BE, SOMEONE WITH GOOD HEARING CAN DISCERN IT. BUT GOING BACK TO IT'S NOT WHAT THE OFFICER HEARS, IT'S JUST THAT DO YOU NOW KNOW THERE'S A STATUTE IN PLACE THAT SAYS IT HAS TO BE PLAINLY -- IT CAN'T BE PLAINLY AUDIBLE FROM 25 FEET WHAT THAT MEANS, THAT YOU MODULATE YOUR RADIO SO THAT IT'S NOT AS LOUD? >> I CAN COMPREHEND WHAT HE'S GETTING AT, BUT IT MEANS A DIFFERENT THING TO ME, IT MEANS A DIFFERENT THING TO YOU. >> HOW -- SEE, THAT'S WHAT I GUESS, AND I'M MAYBE GOING BACK TO -- I HAVE SOME OTHER ISSUES WITH THIS. >> RIGHT. >> BUT I DON'T SEE THAT IT IS, YOU KNOW, THAT IT IS A, THAT IT DOESN'T PUT YOU ON NOTICE OF YOUR POTENTIALLY VIOLATIVE BEHAVIOR. I DON'T GET THAT PART. >> OKAY. AND SO THE COURT IN MONTGOMERY, THE FIFTH DCA DECISION IN MONTGOMERY GOES ALONG WITH EXACTLY WHAT YOUR HONOR IS SAYING.

20 THEY'RE DISAGREEING WITH THE SECOND, AND THEY'RE SAYING WE DON'T FIND IT VAGUE, SECOND DCA SAYS IT'S VAGUE AND OVERBROAD, THEY SAY IT'S VAGUE, THEY SAY -- IN MONTGOMERY THEY SAY IT IS NOT VAGUE, BUT IT IS OVERBROAD. >> OKAY. SO NOW WE GO TO OVERBREADTH. >> I WILL READILY ADMIT IN TOTAL CANDOR TO THE COURT THAT OF ALL OF THE ISSUES, THE VAGUENESS IS NOT THE STRONGEST ONE. >> WHAT'S YOUR STRONGEST? >> PARDON ME? >> WHY DON'T YOU GO RIGHT TO YOUR STRONGEST. >> CONTENT-BASED -- >> WELL, LET'S GO TO OVERBREADTH BECAUSE YOU WERE SAYING OVERBREADTH. IS THAT CONTENT WHEN YOU GET TO -- >> YES. IT REACHES FAR MORE BROADLY THAN NECESSARY. THAT'S THE 25 FOOT. MY -- AM I 25 FEET FROM JUSTICE LABARGA NOW? CAN HE HEAR ME? >> [INAUDIBLE] >> CONVERSATIONAL TONE. I'M GOING TO GET PULLED OVER FOR THIS? I'M GOING TO GET PULLED OVER FOR THIS? IN SARASOTA THEY WERE PULLING PEOPLE OVER AND IMPOUNDING CARS ON FIRST OFFENSE. FOR THAT. IF YOU CAN HEAR ME, AM I PLAINLY AUDIBLE NOW? I'M DRIVING DOWN ON SPRING BREAK WITH MY WINDOWS DOWN, I'M AT THIS LEVEL. THAT'S WHAT THEY'RE DOING. THAT'S WHY I'M HERE. THE OVERBREADTH IS THERE ARE NO STRICT GUIDELINES OR DEFINITE STANDARDS AS IN DALEY. >> BUT LET ME -- EVEN WITH THAT IT JUST SEEMS TO ME THAT IF THEY'RE CORRECT THAT THE PURPOSE OF THE STATUTE IS SO THAT PEOPLE INSIDE OF THE CAR CAN HEAR IF

21 THERE ARE EMERGENCY VEHICLES AND OTHER THINGS EVEN THOUGH FROM THE 25 FEET IT MAY NOT BE AS LOUD, BUT FROM THE INSIDE OF THE CAR IT WOULD BE A LOT LOUDER AND SO -- >> RIGHT. >> -- ISN'T THAT A LEGITIMATE SORT OF, A LEGITIMATE THING FOR THE LEGISLATURE TO SAY -- >> IT'S ABSOLUTELY -- >> BECAUSE YOU ARE THE ONE IN THE CAR, YOU'RE THE ONE WHO'S GOING TO NEED TO HEAR THESE EMERGENCY VEHICLES, THAT'S A REASONABLE STANDARD? >> IT'S AN ABSOLUTELY LEGITIMATE CONCERN, BUT WE'RE ALL ASSUMING WHAT THEIR CONCERNS ARE BECAUSE THEY DON'T SAY WHAT THEY ARE. >> WELL, I MEAN, I THINK IT'S A LEGITIMATE REASON WHERE THE STATUTE IS PLACED. >> RIGHT. >> WE COULD DRAW SOME INFERENCE -- >> LET'S, IF WE ASSUME THAT IT IS, THAT THAT'S THE PURPOSE OF IT, THEN I WILL READILY ADMIT THE STATE HAS A RIGHT TO REGULATE SOUND. I'M NOT CHALLENGING THAT IN THE LEAST. BUT THEY'VE GOT TO DO IT RIGHT. IT'S NOT CONSTITUTIONAL. WE'RE TALKING ABOUT OVERBREADTH -- >> WELL, AGAIN, I MEAN, YOU'RE MIXING THE VERNACULAR OF THIS IS NOT RIGHT, THIS IS NOT FAIR, THIS IS STUPID -- >> WELL -- >> WELL, THAT'S THE POINT YOU'RE MAKING. YOU STAND ACROSS THE ROOM AND SPEAK, AND IT SEEMS ABSURD THAT WE HAVE TO PASS A LAW TO SAY YOU CAN'T TALK IN YOUR CAR BECAUSE IT'S GOING TO KEEP YOU FROM HEARING SOMETHING. WE NEED TO GET TO THE CONSTITUTIONAL BASIS FOR IT. >> YES, YOUR HONOR. >> WHETHER WE LIKE IT OR NOT AND AGREE WITH YOU, WE CAN'T RULE ON

22 THAT. >> NO, I UNDERSTAND, YOUR HONOR. IF I MAY GET TO THE CONTENT-BASED ISSUE, OKAY? ON THE CONTENT-BASED ISSUE, THE BUSINESS IN POLITICAL EXCEPTION, THAT, TO ME, IS FATAL TO THE -- FATAL BASED ON THE CITY OF CINCINNATI V. THE U.S. SUPREME COURT. THE MOMENT THAT YOU CARVE OUT, YOU MAKE THESE CARVEOUTS AND ANY KIND OF LAW ALONG THESE LINES THE CASE LAW CITED IN THE BRIEF STATES, ANYTIME YOU MAKE THESE KIND OF CARVEOUTS, IT HAS TO APPLY TO ACROSS THE BOARD TO ALL KINDS OF NOISE. YOU CANNOT FAVOR ONE ABOVE THE OTHER. YOU CANNOT REGULATE ONE BASED ON THE CONTENT. YOU CANNOT -- THE MOMENT THAT YOU HAVE A CONTENT-BASED RESTRICTION WHICH IS WHAT I BELIEVE THESE ARE, THE BUSINESS EXCEPTION AND THE POLITICAL EXCEPTION, WHY IS IT THAT IF I'M RUNNING FOR OFFICE, I CAN BE IN A SOUND TRUCK AND GET ON THERE AND AS LOUDLY AS I WANT SAY VOTE FOR HONEST RICH CATALANO FOR MAYOR? AND I CAN DO THAT, AND THEY CAN'T TOUCH ME FOR THAT UNDER THIS STATUTE. BUT IF I PLAY LED ZEPPELIN "HOUSES OF THE HOLY," OR IF I DO ANYTHING LIKE THAT, OR IF I MAKE A RELIGIOUS SPEECH, I GET A TICKET? AND NOT ONLY THAT, AT 25 FEET IF I'M PLAINLY AUDIBLE AT 25 FEET, I GET A TICKET. BUT IF I MAKE A POLITICAL SPEECH THERE, THEN THAT'S FINE. I THINK I UNDERSTAND WHY THEY PUT IT IN, BECAUSE POLITICAL SPEECH ENJOYS SUCH A HIGH LEVEL IN CONSTITUTIONAL LAW THAT THEY KNEW THAT IF THEY DIDN'T, THEY WERE GOING TO HAVE A CONSTITUTIONAL PROBLEM. BUT IT'S KIND OF THEY SHOT THEMSELVES IN THE FOOT, IS WHAT

23 IT APPEARS. BY PUTTING THAT IN, IT MAKES IT A CONTENT-BASED RESTRICTION, AND UNLESS THE STATE HAS A COMPELLING INTEREST, IT FAILS. IT'S PRESUMPTIVELY UNCONSTITUTIONAL UNDER CITY OF CINCINNATI AND OTHER U.S. SUPREME COURT LAW. SO ON THAT BASIS, IT'S A PROBLEM. THEN IN SEVERANCE, THE ISSUE OF SEVERANCE, I WANT TO GET TO THAT. IN TERMS OF THE CRAMP TEST, I BELIEVE A THIRD LEVEL OF THE CRAMP TEST THAT LOOKS AT IT, UM, I DON'T BELIEVE -- FIRST OFF, I DON'T BELIEVE IT MEETS ANY OF THE REQUIREMENTS OF CRAMP. ON THE THIRD LEVEL OF THE CRAMP TEST, IF WE TAKE IT OUT, I DON'T THINK THAT THE STATUTE IS GOING TO STAND, THAT IT'S GOING TO STAND. I DON'T SEE HOW IT DOES. UM, BASICALLY, I HAVE SINCE THE -- HERE IT IS. THE LEGISLATURE SPECIFICALLY CARVED OUT THOSE EXEMPTIONS TO PROTECT POLITICAL SPEECH, AND THEY WOULD CLEARLY NOT HAVE PASSED THE STATUTE WITHOUT THEM. AND THAT WAS UNDER CRAMP TEST, YOU KNOW, THE THIRD RUNG OF THAT IS GOOD, AND THE BAD FEATURES ARE NOT SO INSEPARABLE IN SUBSTANCE THAT IT CAN BE SAID THE LEGISLATURE WOULD HAVE PASSED THE ONE WITHOUT THE OTHER. I DON'T SEE HOW THE LEGISLATURE COULD HAVE PASSED IT. THEY DIDN'T PASS IT WITHOUT IT BECAUSE THEY HAD THE HOUSE BILL AND THE SENATE BILL. THE HOUSE BILL HAD BOTH OF THESE IN IT, BUSINESS AND POLITICAL EXCEPTIONS. THE SENATE BILL DID NOT. THEY PASSED THAT ONE. THAT WAS A CONSCIOUS DECISION. >> NOW, THAT WAS IN THE ORIGINAL, THE FIRST BILL THAT WAS --

24 >> CORRECT. THE 1990 ORIGINAL STATUTE. >> DID THAT HAVE A POLITICAL/COMMERCIAL EXEMPTION? >> YES. >> OKAY. BECAUSE I THOUGHT MAYBE THAT WAS PUT IN -- >> YES, I BELIEVE THAT TO BE SO IS WHEN THEY DID THE 100 FEET DOWN TO 25 FEET. >> WOULD YOU, WOULD 100 FEET, WOULD WE BE IN A DIFFERENT SITUATION AS FAR AS THE REASONABLENESS OR THE LACK OF OVERBREADTH OF THAT? IN OTHER WORDS, 25 FEET MIGHT BE DEBATABLE, BUT 100 FEET IS -- >> WELL, IT'S FOUR TIMES BETTER, LET'S PUT IT THAT WAY. 100 FEET DISTURBING, PLAINLY AUDIBLE AT 100 FEET WHERE IT WAS IS ONE THING, 25 FEET IS MUCH MORE RESTRICTIVE, AND THAT'S THE OVERBREADTH. IT'S THROWING A DRAGNET, IT'S CATCHING FAR TOO MUCH. JUDGE BLACK OF THE SECOND DCA FELT IT WAS LITERALLY, HE SAID THIS, KILLING A MOSQUITO WITH A MACHINE GUN. HE FELT IT WAS GOING FAR TOO FAR -- >> WHAT WERE YOU SAYING ABOUT IMPOUNDING VEHICLES? >> PARDON ME? >> WHAT WERE YOU SAYING ABOUT IMPOUNDING VEHICLES? >> THAT WAS IN SARASOTA. ON THE BACK OF , IT WAS A SEPARATE LOCAL ORDNANCE, BUT IT WAS ON THE BACK OF THAT. AND IF YOU VIOLATED , THEY WERE ON A FIRST OFFENSE THEY HAD THE RIGHT TO GIVE YOU A TICKET AND IMPOUND YOUR VEHICLE ON THE SPOT. IMPOUND IT, ORDER YOU OUT OF YOUR CAR, IMPOUND THE VEHICLE. YOU DON'T GET IT BACK UNTIL YOU PAY THE TICKET, AND YOU PAY THE TOW CHARGE -- >> THIS IS NOT THE STATE STATUTE. WE DON'T HAVE THAT.

25 >> NO, NO, NO. BUT AS I SAID, IT WAS ON THE BACK OF IT WAS ON THE BACK OF THAT STATUTE. OKAY. BUT ANYWAY, ALSO ON THE SEVERABILITY ISSUE, I DON'T BELIEVE IF YOU LOOK AT CRAMP, THE FOUR LEVELS OF CRAMP, I DON'T SEE THAT IT PASSES. THE UNCONSTITUTIONAL PROVISIONS CAN BE SEPARATED FROM THE REMAINING VALID PROVISIONS. WELL, I GUESS THEY COULD TECHNICALLY BE SEPARATED. IT'S OUR POSITION THAT THE REMAINDER OF THE STATUTE THAT IS THERE IS VOID, IT'S UNCONSTITUTIONALLY VAGUE AND, CERTAINLY, UNCONSTITUTIONALLY OVERBROAD. WHAT WOULD REMAIN? THE LEGISLATIVE PURPOSE EXPRESSED IN THE VALID PROVISIONS CAN BE ACCOMPLISHED INDEPENDENTLY OF THOSE WHICH ARE VOID. AGAIN, WE FEEL THAT THEY FAIL. ALSO UNDER THE LAST OF IT, OF THE CRAMPED TESTING, COMPLETE OF ITSELF REMAINS AFTER THE PROVISIONS ARE STRICKEN. AND AS JUSTICE PARIENTE SAID IN THE LONGWOOD CASE, IT CANNOT BE SAID THE STATUTE WOULD BE COMPLETE IN ITSELF ONCE THE INVALID PORTIONS ARE SEVERED. >> IN THIS CASE THE EXCEPTIONS WOULD BE REMOVED. >> CORRECT. >> SO YOU'D STILL HAVE THE BASIC ORDNANCE OR THE STATE STATUTE JUST WITHOUT THE EXCEPTIONS. >> THAT'S CORRECT. >> AND SO YOUR POSITION IS THE EXCEPTIONS ARE NECESSARY FOR THE CONSTITUTIONAL VALIDITY FOR -- >> I SAY THAT THEY ARE UNCONSTITUTIONAL CONTENT-BASED RESTRICTION. BUT IF YOU TAKE THEM OUT, IT FAILS AS WELL -- >> BECAUSE? BECAUSE?

26 >> BECAUSE THOSE ARE THERE FOR POLITICAL SPEECH WHICH IS ON THE HIGHEST RUNG OF EVERYTHING. IF YOU TAKE THAT OUT -- >> BECAUSE THEN -- >> PLAINLY AUDIBLE AND NOW IT'S SUBJECT TO PLAIN AUDIBILITY AT 25 FEET, THANK YOU. THAT IS EXACTLY CORRECT. PLAINLY AUDIBLE AT 25 FEET ON POLITICAL SPEECH IF YOU, IF YOU SEVER SECTION 3. YOU CAN'T. IF YOU SEVER 3, POLITICAL SPEECH IS SUBJECT TO 25 FEET. THAT'S -- >> WELL, YOU CAN DO IT, IT'S SCRUTINY, REASONABLE TIME, PLACE. AGAIN, IF THE GOAL WAS TO ELIMINATE NOISE POLLUTION, AGAIN -- >> PRESUMABLY, YEAH. >> WELL, IT SEEMED TO ME THAT WAS, I THOUGHT THAT WAS WHAT WAS DRIVING IT THEN, YOU KNOW, YOU CAN'T DRIVE YOUR CAR WITH LOUD MUSIC AFTER 6:00 AT NIGHT. I MEAN, YOU CAN PUT REASONABLE TIME, PLACE RESTRICTIONS IF IT'S NOT CONTENT-BASED. >> CORRECT. >> BUT YOU CAN APPLY IT TO POLITICAL SPEECH AS LONG AS YOU'RE NOT DISCRIMINATING AND IT'S A REASONABLE RESTRICTION. >> IT'S -- THE LAW'S STILL THERE. IT'S STILL GOING TO BE SUBJECT, BUT IT DOESN'T HAVE ANY TIME, IT DOESN'T CONTAIN -- >> NO, I UNDERSTAND THAT. BUT YOU WERE SORT OF SAYING THEY COULDN'T DO IT BECAUSE IT'S POLITICAL SPEECH. BUT YOU CAN DO IT -- >> OH, YEAH. IF YOU WANT TO REWRITE THE STATUTE, YOU CERTAINLY COULD. THIS STATUTE FAILS, FIRST OFF, ON THE VAGUENESS OF WHAT I STATED, THEN THE OVERBREADTH, THEN IT'S CONTENT-BASED. AND THE QUESTION WHETHER IT'S CONTENT-BASED OR NOT, I DON'T

27 KNOW HOW YOU SAY IT'S NOT WHEN YOU'VE GOT THE EXCEPTION FOR BUSINESS AND POLITICAL. AND IF YOU SEVER IT, YOU'VE GOT A MAJOR PROBLEM. >> I THINK ONE OF THE PROBLEMS, I'M GOING TO GO BACK TO PLAINLY AUDIBLE, AND IT'S WHAT JUSTICE LABARGA IS SAYING. IF YOU HAVE YOUR WINDOW UP AND THE AIR-CONDITIONING'S ON, YOU'RE -- AND THE MUSIC IS PRETTY LOUD, IT'S NOT GOING TO BE PLAINLY AUDIBLE BY 25 FEET. BUT YOU MAY NOT BE ABLE TO HEAR ANYTHING GOING ON IN THE OUTSIDE BECAUSE IT'S THAT LOUD. SO IT DOESN'T REALLY -- THE PROBLEM IS THAT THE OUTSIDE STANDARD DOESN'T PROTECT THE INTERESTS OF THE INSIDE. >> RIGHT, I UNDERSTAND WHAT YOU'RE SAYING. >> A FRIENDLY QUESTION, BUT THAT'S WHERE I SEE THE PROBLEM HERE. >> YEAH. >> IF IT'S TO PROTECT ME, THEN WE OUGHT TO LIMIT IT, IT OUGHT TO BE WHAT IS AUDIBLE WITHIN THE VEHICLE. >> RIGHT. >> DECIBEL LEVEL. >> RIGHT. AND AS YOU SAID BEFORE, I HEARD THE ONE THAT PULLED ME OVER. AND FOR THE RECORD -- IT'S NOT IN THE RECORD, BUT MY WINDOWS WERE UP. THEY WERE UP AT THE TIME, AND I STILL GOT PULLED OVER. YES, I HAVE A SUBWOOFER IN THE TRUNK, AND MAYBE THAT'S WHAT HE HEARD. >> AH. >> AHA, THERE IT IS. [LAUGHTER] >> THE TRUTH SHALL REVEAL. >> I'M NOTHING IF NOT FORTHCOMING -- >> IT'S LUCKY THAT'S ALL YOU HAD IN YOUR TRUNK. [LAUGHTER] >> I SEE MY TIME IS UP -- [LAUGHTER]

28 >> THAT'S JUST MY SUBWOOFER. >> JUST MY SUB. [LAUGHTER] BUT IN SUMMATION, I SEE 30 SECONDS REMAINING -- >> ACTUALLY, YOU'RE 30 SECONDS OVER. >> OH, I'M OVER. >> YEAH. WE HAD SOMEONE THERE WHO KEPT THINKING THE LONGER HE WAS IN OVERTIME, THE MORE TIME HE HAD. [LAUGHTER] >> ALL RIGHT, THANK YOU. >> JUST VERY BRIEFLY, IT SEEMS LIKE WE'VE REACHED SOME SORT OF AGREEMENT HERE ON SUBSECTION 1 OF THE STATUTE. AS FAR AS SUBSECTION 3, WE THINK THAT IF YOU HAVE A PROBLEM WITH THAT -- >> IF YOU HAVE YOUR WINDOW UP, AND THE AIR CONDITIONING'S ON, AND THE MUSIC IS PRETTY LOUD, IT'S NOT GOING TO BE PLAINLY AUDIBLE BY 25 FEET, BUT YOU MAY NOT BE ABLE TO HEAR ANYTHING GOING ON IN THE OUTSIDE BECAUSE IT'S THAT LOUD, SO IT DOESN'T REALLY PROTECT THE PROBLEM IS IS THE STANDARD DOESN'T PROTECT THE INTEREST OF THE INSIDER. >> RIGHT. I UNDERSTAND WHAT YOU'RE SAYING. >> THAT'S A FRIENDLY QUESTION. BUT THAT'S WHERE I SEE THE PROBLEM BEING. IF IT'S TO PROTECT ME, THEN WE OUGHT TO LIMIT IT IT OUGHT TO BE WHAT IS AUDIBLE WITHIN THE VEHICLE. >> RIGHT. >> DECIBEL LEVELS. >> RIGHT. AND AS YOU SAID BEFORE, I HEARD THE ONE THAT PULLED ME OVER. IT'S NOT IN THE RECORD, BUT MY WINDOWS WERE UP. THEY WERE UP AT THE TIME. AND I STILL GOT PULLED OVER. YES, I HAVE A SUB WOOFER IN THE TRUNK AND MAYBE THAT'S WHAT HE HEARD. I'VE BEING FORTHCOMING WITH THE COURT. >> HOPEFULLY THAT'S ALL YOU HAVE IN YOUR TRUNK. [ LAUGHTER ] >> I SEE MY TIME IS UP. [ LAUGHTER ] >> THAT'S HIS SUB WOOFER. >> JUST MY SUB. BUT IN SUMMATION, I SEE IN 30 SECONDS REMAINING >> NO. YOU'RE 30 SECONDS OVER. WE HAD SOMEONE THERE WHO KEPT THE LONGER HE WAS IN OVERTIME THE LONGER HE THOUGHT HE HAD. >> ALL RIGHT. THANK YOU.

29 >> JUST VERY BRIEFLY, IT SEEMS LIKE WE'VE REACHED SOME SORT OF AN AGREEMENT HERE ON SUBSECTION 1 OF THE STATUTE. AS FAR AS SUBSECTION 3, WE THINK THAT IF YOU HAVE A PROBLEM WITH THAT >> THE LAST QUESTION, IF THE STATUTE IS DESIGNED FOR THE SAFETY OF THE PEOPLE IN THE VEHICLE, WHAT DOES THE 25 FEET HAVE TO DO WITH THAT? >> WELL, YOU HAVE TO START SOMEWHERE, YOUR HONOR. I THINK THAT WITH 25 FEET, IF YOU CAN HEAR THAT, THEN YOU KNOW THAT THEY'RE NOT GOING TO BE ABLE TO HEAR IN THE CAR. SHOULD IT BE FIVE FEET? WELL, IN ALABAMA IT IS FIVE FEET. SHOULD IT BE TEN FEET? IN DETROIT, IT IS TEN FEET. SO, YES. >> IN OTHER PLACES IT'S 100 FEET. >> THEY'RE PROBABLY THINKS MORE OF THE INTRUSION FACTOR AS OPPOSED TO THE SAFETY FACTOR. >> I HAVE A VEHICLE AND I HAVE A LOT OF KIDS. SAY I'M DRIVING MY I HAVE A BIG VEHICLE AND EIGHT GRANDKIDS AND THEY ARE ALL TALKING REALLY LOUDLY, BUT THE WINDOW IS UP AND HE'S THINKING THIS BECAUSE HE'S GOT SOMETHING LIKE THAT SITUATION. >> YOU CAN HEAR THEM TOO. >> YOU ARE HEARING THE NOISE THAT'S GOING TO BE THE PROBLEM IS THE NOISE WITHIN YOUR VEHICLE. SO YOU PUT YOUR WINDOW UP BECAUSE YOU DON'T WANT TO HAVE OTHER PEOPLE HAVE TO HEAR YOUR KIDS, YOU KNOW, ALL ARGUING WITHIN, YOU KNOW, BUT IT'S THE PURPOSE OF THE STATUTE ISN'T BEING MET THEN. I MEAN >> WELL, I THINK IT WOULD BE HARD TO DRAW A STATUTE ALONG THAT LINE. THERE ARE GENERAL NOISE STATUTES THAT APPLY TO VEHICLES AND ORDINANCES OUT THERE. THERE ARE MUFFLER STATUTES. THERE ARE OTHER PLACES IN THE CODE THAT ADDRESS NOISE. BUT I WOULD HAVE IT WOULD BE HARD FOR THEM, I WOULD THINK, TO DRAW SUCH A >> WOULD SOMEBODY KNOW READING THE STATUTE THAT THAT'S WHAT IT WAS INTENDED TO DO? IN OTHER WORDS CATALANO GETS PULLED OVER AND HE DOESN'T KNOW WHAT'S GOING ON. TO HAVE THE STATUTE SAY PLAINLY AUDIBLE SO THAT A DRIVER IN THE VEHICLE CAN HEAR EMERGENCY VEHICLES AND POLICE VEHICLES. BECAUSE THAT'S REALLY THE TWO I DON'T KNOW WHAT ELSE AND HORNS HONKING. >> SURE. I THINK WE CAN ALWAYS DRAFT A BETTER STATUTE, PERHAPS, BUT I THINK THAT THEY'VE BEEN PRETTY CLEAR HERE. THEY TALK ABOUT FROM WITHIN THE VEHICLE, SOUND, STEREO NOISE FROM WITHIN THE VEHICLE THAT TRAVELS 25 FEET OUTSIDE OF THE VEHICLE. I THINK IT'S CLEAR ALSO FROM THE PLACEMENT OF THE STATUTE >> IT'S NOT JUST SOUND. IT'S LIMITED TYPES OF SOUND. IT'S NOT ANY SOUND. IT IS RADIO, TAPE PLAYER, OTHER MECHANICAL, SOUND MAKING DEVICE OR INSTRUMENT. IT'S NOT VOICES. >> THAT'S RIGHT. IT'S AMPLIFIED SOUND. >> RIGHT. >> THAT'S CORRECT. SO THAT WAS THE PURPOSE OF THIS STATUTE.

30 WE WOULD SAY THAT IF YOUR PROBLEM IS CONTENT WITH SUBSECTION 3, WE WOULD ASK YOU TO SEVER IT. WE PREFER SEVERANCE. THE MAGAZINE PUBLISHER CEAS CASE WE CITED YOU HAD A SIMILAR CASE WHERE A TAX WASN'T BEING APPLIED TO NEWSPAPERS, BUT TO MAGAZINES, AND YOU STRUCK THE EXCEPTION FOR THE NEWSPAPER. SO WE'D ASK YOU TO SEVER. THANK YOU. >> ALL RIGHT. WE THANK YOU BOTH FOR YOUR ARGUMENTS. THE COURT WILL NOW STAND IN RECESS FOR TEN MINUTES. >> ALL RISE.