McAllen noise ordinance prompts First Amendment lawsuit

By Karen Antonacci
The Monitor
Originally published Sept. 1, 2014

McALLEN — Hector Guzman Lopez pointed to the megaphone slung on his shoulder Monday morning while he explained his freshly-filed lawsuit alleging the city is infringing on his First Amendment rights.

But, if he used the megaphone, he could be issued a citation and fined as much as $500, he said.

Lopez, through his lawyers Efrén Olivares and Carlos M. Garcia, filed a lawsuit against the city Monday saying the city ordinance prohibiting megaphones and yelling is unconstitutional.

While parts of the ordinance Lopez took issue with have been on the books since 2003, he said it didn’t come to his attention until he was leading a Fuerza Del Valle Workers Center protest against wage theft in May.

On May 1, Lopez and other Fuerza Del Valle members were standing outside D. Wilson Construction on Pecan Boulevard in McAllen. The group used megaphones and signs to accuse D. Wilson of failing to pay workers that helped construct local schools, Lopez told a KGBT-TV reporter at the time.

Police officers arrived and informed the group that it was against city ordinance to use megaphones.

“Fine so we put the megaphones aside and we continued with our protest,” Lopez said. “Then they tell us we couldn’t be screaming in any way and if we continued screaming, they were going to issue us citations for that.”

The protesters complied, humming and clapping, but returned May 15. That time, when officers arrived and told them to stop screaming and using a megaphone, the protesters stood silently with pieces of tape over their mouths, Lopez said.

The noise ordinance, originally passed in 1993 and amended in 1995 and 2003, prohibits the use of voice amplification devices that is making noise that is not “reasonably necessary to the enjoyment and protection of life and indispensable to the progress of society in the city.”

A section added in 2003 specifically prohibits several noises in city limits, including “screaming, shouting, hollering or yelling.”

Olivares, the senior staff attorney at the South Texas Civil Rights Project, said that while other cities have similar noise ordinances they also usually include specific prohibited decibel levels or places.

“It cannot be too close to a hospital or a school or a daycare or something like that, but such a blanket prohibition like is in place in the city of McAllen, I have not seen because it is not constitutional,” Olivares said.

To limit the time, manner or place of free speech, government restrictions must be content neutral, but Olivares alleges the application of the ordinance — namely when someone such as a business owner complains — is sporadic and therefore not content neutral.

Lopez’s lawsuit lists four examples of protests or outdoor events he has attended since May where people yelled or used megaphones and although police were present, no citations were issued, including FIFA World Cup viewings held at the McAllen Convention Center.

City Attorney Kevin Pagan said he didn’t believe the ordinance was unconstitutional and that it would have been nice to know that Lopez or Olivares had an issue with the ordinance or its application before they filed a lawsuit. Olivares said Monday they had not spoken with Pagan, Mayor Jim Darling or the city commission about the ordinance.

“It’s the very sort of thing that if we had known about their concerns about how it was being applied, we would have been happy to visit with them about that,” said Pagan who read a provided copy of the lawsuit Monday, when city offices were closed for Labor Day.