GLEN ROCK, Penn. — The Rutherford Institute is calling on officials in Glen Rock, Penn., to withdraw an order to an active-duty naval officer to cease and desist playing “Taps” on a sound system on his five-acre residential property or face a criminal fine of $300. Lt. Commander Joshua Corney was informed that his daily evening broadcast of a recording of the traditional military bugle call violated the borough’s nuisance ordinance, which prohibits sounds that annoy or disturb others. In weighing in on the issue, Rutherford Institute attorneys warn that the ordinance in question is overbroad, unduly vague, and unconstitutional as applied to Corney’s exercise of his First Amendment right to freedom of expression.
“Rather than enforcing ordinances that undermine its citizens’ First Amendment rights, Glen Rock Borough should work to establish policies that protect the liberty of its citizens,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “When government officials are given the discretion to pick and choose what kinds of expression to allow and what to prohibit and penalize—no matter what form that expression takes—then the First Amendment simply has no meaning.”
Lt. Commander Corney is an active-duty naval officer who had previously played an amplified broadcast of “Taps” every evening at 8:00 p.m. “Taps” is a military bugle call played at dusk at military installations and at military funerals. Corney’s practice is meant as a poignant and solemn reminder to the public of the great service and sacrifice made by those who are serving or have served in the U.S. military. Nevertheless, a single complaint triggered the enforcement of the borough’s nuisance ordinance against Lt. Commander Corney’s tribute. The Borough claims that Corney’s tribute violates the ordinance’s provisions that forbid any sound that “annoys or disturbs” others. Consequently, on June 23, 2017, the Borough ordered Lt. Commander Corney to stop playing the recording except on Sundays and “flag” holidays. The Borough threatened that any violation of the order would result in a criminal fine of $300.
In weighing in on the issue in defense of Corney’s First Amendment rights, attorneys for The Rutherford Institute point out that Corney’s musical tribute constitutes speech that is protected under the First Amendment to the U.S. Constitution. “Speech” protected by the First Amendment extends to many non-verbal activities, including the playing or performance of a musical composition. To be valid under the First Amendment, lawful restrictions on speech (1) must not be too vague or delegate excessive discretion to enforcement officials, (2) must not be based on the content of the message (3) must be narrowly tailored to serve a significant governmental interest, and (4) must leave open ample alternatives for communication. Institute attorneys warn that the Borough’s nuisance ordinance is not only constitutionally suspect but is also unduly vague. Vague laws offend the First Amendment because they give enforcement officials too much discretion, allowing them to decide what speech will be allowed and what will be prohibited. In order for a restriction on speech to comply with the Constitution, its terms must contain clear standards to guide officials on the application of the ordinance to prevent arbitrary and discriminatory enforcement.