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I went trick or treating with my goddaughter for Halloween. During it we came across a house where the owner of the house were 'preaching' about the evils of Halloween, I don't recall the details but something about not suffering a witch to live means not dressing up as one and that it would all lead to sacrificing a virgin, and for the record that last part is not hyperbole, I remember it as the highlight of their speech. They had set up a loudspeaker to project what they were saying, they could be heard from 2-3 houses down.

On our way back we passed someone who claimed to be an off duty cop informing them they had to stop. The cop specifically was saying that they were upsetting young children with some of the things they were saying and thus had to stop.

I was wondering about the legality of the action. I realize that the speech itself was protected within limits. I imagine the use of a loud speaker may push the action into disturbing the peace due to being too loud? From what I heard though the supposed cop never mentioned the volume of the loudspeaker, he was focusing on verbal depictions that were upsetting to young children.

So were they illegal for use of loudspeaker, and separate from that was it illegal due to the use of disturbing mental imagery inflicted on young children?

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    I thought scaring children was more or less the point of halloween. – user4460 Nov 11 '16 at 0:21
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    @notstoreboughtdirt no the point is to take toddlers around trick or treating and then, since there clearly too young to have candy, 'assist' them in finishing it. – dsollen Nov 11 '16 at 3:10
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    IANAL and hence no answer, but keep in mind that the "freedom of speech" concept is primarily intended to avoid the state silencing citizens; it protects people from state sanctions. It is not primarily there to make sure that everybody can say everything in whatever manner at all times. In this particular case, if it were an on-duty cop, for example responsing to a complaint from a neightbour, could very well be doing the right thing. For example, a neighbour could view that witch nonsense as "obscenity", which would overrule f.o.s. - but take this only as rambling, excercising my f.o.s. :) – AnoE Nov 11 '16 at 8:12
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    Do we know for sure if it was an actual off-duty cop or could it have been somebody who dressed up as an off-duty cop for halloween? – Dason Nov 11 '16 at 13:02
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    @Dason: and specifically what if it was a creepy clown dressed up as an off-duty cop? – smci Nov 11 '16 at 13:41
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Short Answer

It was probably legal to rant and probably illegal to shut down the person doing the ranting.

Analysis

Generally speaking, "content based" restrictions on speech are very limited, although "time, place and manner" restrictions are allowed if they are reasonable and not a backdoor way to restrict content, under the First Amendment. The "time, place and manner" exception derives from the case Cox v. New Hampshire, 312 U.S. 569 (1941) (summarize here), which held that municipalities could charge fees for parade permits even if that imposed a content neutral burden on speech in the interest of maintaining a peaceful situation in which order is maintained. Some leading cases on the subject are cited here where the professor discussing them engages in some useful analysis:

Content-neutral justifications for regulating speech are, however, still subject to overbreadth challenges, as demonstrated by the recent case of Watchtower Bible & Tract Society v Stratton (2002). In Watchtower, the Court struck down on an 8 to 1 vote the ordinance of an Ohio town that required all door-to-door advocates of causes, as well as commercial solicitors, to obtain a permit from the mayor's office. The town had attempted to justifiy its ordinance as a fraud-prevention and privacy-protection measure, but Justice Stevens wrote for the Court that the ordinance was "offensive not only to the values protected by the First Amendment, but to the very notion of a free society." The Court found the alleged interests in protecting residential privacy and preventing fraud insufficient to justify such a sweeping restriction. The Court noted that the ordinance reached religious proselyting and anonymous political speech (where fraud is not an issue) and that residential privacy could be adequately protected by another Stratton law that allowed homeowners to place themselves on a "Do Not Solicit" law and then post "no solicitation" signs on their property. The Stratton case strongly suggests that the Court would find a carefully drafted "Do Not Call" law applying to telemarketers to be constitutional.

Two of our cases concern the state's interest in preventing disturbances of the public peace that might be caused by controversial speech. In Feiner (1951), the Court upheld the conviction of a speaker who refused three requests from a police officer to stop speaking after members of a street corner audience threatened to attack the speaker. Dissenting justices saw the decision as an outrage, suggesting that the police had an obligation to protect the speaker and arrest those who might try to assault him. (In Forsyth County (1992), the Court struck down an ordinance that allowed county officials to set permit fees for rallies and parades based on how much police protection was estimated to be required. The Court noted that such a permit system disproportionately burdens unpopular speech (allowing a "heckler's veto"). One wonders, after Forsyth County, whether Feiner remains good law.)

For example, most municipalities have noise ordinances that set a decibel limit on noise for a particular time of day (usually quieter at night), and might even require a permit to use a loud speaker in a public area, on the content neutral basis of how loud the sound is (classic "time, place and manner"), rather than the content.

The legal boundaries on using a "disturbing the peace" ordinance to limit troubling content are quite strict (the classic exception being shouting "fire" in a crowded theater or otherwise inciting a riot or provoking a fight).

This particular example would implicate not only freedom of speech but also freedom of religion and so would be subject to particularly strict scrutiny to content based restrictions.

It would probably be unconstitutional to shut down the speaker because it was upsetting to young children under some more general statute or ordinance, although one can imagine circumstances where a narrowly tailored ordinance or law might be held constitutional.

For example, there are valid restrictions on sex and violence in publicly broadcast television content during hours when children typically watch television, but those restrictions do not extend to cable TV or streaming services.

Two of the leading U.S. Supreme Court cases are Ginsberg v. New York (1968), reasoning that material can be obscene as to children (“harmful to minors”) but not as to adults. Society simply doesn’t want harmful material to fall into the hands of minors. However, the government has also attempted to regulate material even beyond the expression prohibited under a harmful-to-minors law. This is the area of indecent expression. And, FCC v. Pacifica Foundation (1978) that the government could fine a radio station for playing a George Carlin comedic monologue containing profanity during daytime hours. But, neither of these harmful to minors cases involved prostelytizing for minority religious views, which is less content neutral than limitations on profanity which is as much about the manner of the presentation of the content as the content itself.

In any case, it is almost certain that there is no narrowly tailored statute or ordinance that actually exists in this particular situation.

Remedies

Indeed, shutting down the speaker while claiming to be an off duty police officer might very well constitute an intentional violation of civil rights of the speaker under color of state law under 42 USC Section 1983, in circumstances where clearly established first amendment law prohibits that conduct a denies the officer qualified immunity from liability.

Even if there were content neutral ordinances that prohibited this content, in this situation, the clear basis for the action was not content neutral and did not refer to any content neutral limitation such as a noise ordinance.

The damages would probably be nominal or modest, but the prevailing party would be entitled to attorneys' fees and costs and quite likely to injunctive relief against further attempts to limit speech in this manner.

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    This seems to answer the second part of OP's question well ("was it illegal due to the use of disturbing mental imagery inflicted on young children") but not the first ("were they illegal for use of loudspeaker"). I'm also not sure the paragraph beginning "For example" actually gives an example relevant to the quoted section (and this paragraph seems to be the main part that relates to the noise pollution angle). – tardigrade Nov 11 '16 at 9:59
  • Seems to me that 'was it illegal to use a loudspeaker' is somewhat addressed above, but the specific case would be impossible to answer for without knowing the locality, as that sort of law is at the municipal level typically. – Joe Nov 11 '16 at 12:09
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    Back in my location he could very well rant as he pleased, however city ordenances forbid he using the loudspeaker weekends, holidays and from 0900PM to 0800AM – Rui F Ribeiro Nov 11 '16 at 12:21
  • Trick or treaters usually come from 530 pm to 830 pm. – ohwilleke Nov 11 '16 at 14:01

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