Hanging Santa Claus, Without an Amplifier

(CLICK TO ENLARGE PHOTO) At the D.C. intersection of 12th and G Streets NW, the noisemakers label a plastic Santa Claus as the "devil." (Copyright © 2005. David Klavitter)

During my day off Friday, I paid a visit to the noisemakers’ weekly afternoon session at 12th and G Streets NW in Washington, D.C. The fellows were not using a powered amplifier this day. Even without the amplifiers, the fellows are certainly loud--they appear to speak with passion, spirit and energy.

With holiday shoppers everywhere in downtown Washington, the noisemakers’ holiday this theme included a public “hanging” of a plastic Santa Claus. Actually, I listened and watched for nearly two hours. Despite the disturbing concept of a public lynching, their street theatrics are quite dramatic--a powerful image with which to convey their message.

As I left, I actually engaged in a civil dialogue with one of the noisemakers. He is steeped in his beliefs and his desire to use the powered amplifier, but we agreed to discuss the noise issue in relation to H and 8th Streets NE.

(CLICK TO ENLARGE PHOTO) Santa Claus is condemned. (Copyright © 2005. David Klavitter)

(CLICK TO ENLARGE PHOTO) Santa Claus is strung up. (Copyright © 2005. David Klavitter)

(CLICK TO ENLARGE PHOTO) The crates are kicked away to chants of “hang him, hang him!” (Copyright © 2005. David Klavitter)

(CLICK TO ENLARGE PHOTO) The aftermath. (Copyright © 2005. David Klavitter)

Who the Noisemakers Are Not

ANC6C Commissioner Anthony Rivera phoned me last week to explain during the Dec. 14 ANC6C meeting, he invited a representative of a church group often confused with the noisemakers disrupting the community with amplified speech. Unfortunately, I didn't see this item on the December agenda and did not attend the meeting. Anthony apologized for not notifying our community in advance.

Rick Clavery of the Israelite Church of God and Jesus Christ told attendees of the ANC6C meeting that the noisemaking group is not part of his church, according to Voice of the Hill (Dec. 22). Clavery said the noisemaking group is a "radical break-off flank" of the church. Clavery's group focuses on educating parishioners--not being disruptive, according to the summary in Voice of the Hill.

I know Anthony wants to ensure innocent groups' reputations are not falsely tarnished, however it does not make a difference to our affected community which group is making the noise. Some also believe church groups should be exempt from noise ordinances. A position with which I disagree because it shifts the burden of measuring decibels to defining church groups.

Balmy Weather Beckons Noisemakers

(CLICK TO ENLARGE) In this photo from Nov. 19, the noisemakers did not use the amplifier, but apparently were agitated that I was photographing them. This fellow on this day called me a “faggot” and a “cracker.” I found it quite unpleasant, others call it hateful, while others cheered him for saying it--further evidence that speech content is entirely subjective. (Copyright © 2005. David Klavitter)

Under sunny skies and temperatures in the mid- to upper-40s, the noisemakers returned to the corner on Saturday, Dec. 17. They were absent during the prior two consecutive weekends--apparently because of cold temperatures in the low- to mid-30s. They resumed using the loudspeaker.

Our neighborhood’s effort is dedicated to lowering the noise level within safe and reasonable decibel levels--specifically we want the noisemakers to stop using the amplifier. We support freedom of speech, religion and the right to assemble. The noisemakers’ content could be considered polarizing--some people strongly agree, while others disagree.

However, on Dec. 17, the noisemakers used profanity, according to one neighbor, Marc, who witnessed the street corner gang in a “yelling fight with a woman.”

He said the noisemakers were using the amplifier and he could clearly hear them calling her a “lesbian and using the 'F' word in their exhortations.” Marc said the woman was screaming back at the fellows, without the benefit of an amplifier.

The noisemakers on many occasions have called me a “faggot” and a “cracker.” In another instance, one woman I spoke with said they called her a “bitch” in front of her eight-year-old son. But I’ve not typically heard them use the generally accepted profane words like “fuck.”

“The leader was more agitated than I remember seeing him,” said Marc, who added that he saw three police officers watching the exchange from the northeast corner of 8th and H Streets. They took no action, he added.

D.C. Noise Loophole Needs a Legislative Patch

As our neighborhood comes to terms with the long task of fixing a D.C. law, we’re buoyed by a head start, courtesy of ANC6A Commissioner Joe Fengler. Joe and I spoke today about what needs to be done to fix the law—now our community will develop a plan to get it done. The following is the text of a letter drafted by Joe to D.C. Councilmembers Sharon Ambrose and Jim Graham:

December 15, 2005

Councilmember Sharon Ambrose
1350 Pennsylvania Ave., NW, #102
Washington, DC 20004

Councilmember Jim Graham, Chair
Committee on Consumer and Regulatory Affairs
1350 Pennsylvania Avenue, NW, Suite 105
Washington, DC 20004

Councilmember Ambrose and Chairman Graham:

On behalf of the residents in my single member district, I request your immediate assistance to amend the “Georgetown Project and Noise Control Amendment Act of 2004” in order to modify an exception currently contained in the noise ordnance that permits amplified free speech on our public streets.

Currently, members of the Israelite Church of God and Jesus Christ, Inc. gather on Saturdays at the corner of Eighth and H Streets, NE to exercise their right of free speech. This group often uses an amplifier to deliver their religious message. The use of the amplifier projects the sound to the surrounding streets in all directions disturbing the peace, order and quiet of our neighborhood. We have no objection to the group or their religious speech. Our objection is the use of the powered amplifier. Over the last nine months, I have been working with the residents, Metropolitan Police Department, Department of Consumer and Regulatory Affairs and the Office of the Attorney General to try to resolve this issue. Unfortunately, the basis of my argument – that amplified sound that exceeds the noise ordinance restrictions is illegal – was incorrect.

The attached letter from the Office of the Attorney General clearly states that the now amended Noise Control Act of 1977 exempts the following: “A sound shall not be considered a noise disturbance if made during noncommercial public speaking during the daytime.” This allows the use of an amplifier on any residential street in our city. Accordingly, I propose a clarifying amendment that inserts the following: “without the use of an amplifier device and...” Accordingly, the section would then read: “A sound shall not be considered a noise disturbance if made without the use of an amplifier device and during noncommercial public speaking during the daytime.”

In close, there may be a more technically sound amendment that better captures the intent of the proposed change. I strongly encourage that in the consideration of the change, the Office of the Attorney General is included in the drafting process to ensure the outcome provides an enforceable ordinance.

Looking forward to your response and support,

Joseph Fengler,
ANC Commissioner, 6A-02

cc:
Councilmember Kwame R. Brown, Committee on Consumer and Regulatory Affairs Member
Councilmember David Catania, Committee on Consumer and Regulatory Affairs Member
Councilmember Adrian Fenty, Committee on Consumer and Regulatory Affairs Member
ANC Commissioner Rivera (ANC 6C),
ANC Commissioner Sherman (ANC 6C),
Mr. David Klavitter
Mr. David M. Rubenstein, Deputy Attorney General, Office of the Attorney General

Behold: D.C. Loophole Allows Amplified Speech

The District of Columbia Office of Attorney General reviewed our situation related to amplified speech at 8th and H Streets NE. The bad news is that the opinion finds a loophole in the law allowing for amplified speech. As frustrating as it may seem—especially since it has taken more than a year to get to this point, at least we know where we stand. It appears now our community will need to pursue a legislative fix. At any rate, our neighborhood is planning a January meeting to map our next steps.

The following text is from a letter from D.C. Office of Attorney General to ANC6A Commissioner Joe Fengler informing Fengler of their opinion:

Government of the District of Columbia
Office of the Attorney General
One Judiciary Square
441 4th Street, NW
Suite 450 North
Washington, DC 20001

Public Safety Division

December 7, 2005

Commissioner Joseph Fengler
Advisory Neighborhood Commission 6A-02
815 F Street, NE
Washington, DC 20002

Dear Commission Fengler:

Pursuant to your request, my Office, in connection with the General Counsels from the Metropolitan Police Department and the Department of Consumer and Regulatory Affairs have been considering what legal options we may have to remedy the situation discussed in your letter dated October 19, 2005. Unfortunately, after much deliberation, we believe that the current state of law leaves us with no viable legal options.

As you know, the applicable provision of law is the Noise Control Act of 1977. The act was amended in 2004, pursuant to the “Georgetown Project and Noise Control Amendment Act of 2004”. Bill 15-280, D.C. Law 15-214 (Effective Dec 7, 2004). Bill 15-280, as introduced, would have exempted noncommercial speech made in nonresidential areas during the daytime from the definition of a “noise disturbance”, except when such speech exceeded 80 decibels “when measured in any nearby occupied building or outside fifty feet (50 ft.) from the source of sound.” However, the enacted version modified the language so that the definition of a noise disturbance now contains the following sentence: “A sound shall not be considered a noise disturbance if made during noncommercial public speaking during the daytime.” 20 D.C.M.R § 2799. Daytime is defined as 7 AM to 9 PM. As a result, the current law leaves us with no legal mechanism by which to stop this activity as long as it constitutes noncommercial speech and is made during the daytime.

I wish I could give you more encouraging news. I know from your letter and subsequent email traffic that this has been an ongoing problem and that affected residents are quite frustrated as a result of the level of noise involved. Should the Council decide to change the law, my Office will work with MDD and DCRA to re-examine our options.

If you would like to discuss this with me, please do not hesitate to contract me at (202) 727-3500.

Sincerely,

ROBERT J. SPAGNOLETI

By: David M. Rubenstein,
Deputy Attorney General

Free Speech or a Nuisance?

(CLICK TO ENLARGE PHOTO) People young and old are easily within earshot of unamplified speech as they walk past the noisemaking group on the afternoon of Nov. 19. The amplifier was present, but was not used by the group that day. (Copyright © 2005. David Klavitter)

This photo brings up an interesting discussion, usually by attorneys when they hear about our saga. I remind them that our neighborhood's issue simply is with the loud and lengthy noise.

I recounted to an attorney friend of mine the D.C. Office of Attorney General (OAG) opinion concerning the issue of amplied speech.

My friend, Eric, thought it was interesting that the OAG legal opinion doesn't even address how the D.C. statute interacts with either common law or statutory law on nuisance. Eric said he had a hard time belieivng that there is NO limit on how loud something can be.

"At some point, there is a health and safety issue," he added.