By Witold Walczak, Legal Director, ACLU of Pennsylvania
Lieutenant Commander Joshua Corney, an active duty naval officer who lives in rural Pennsylvania, returned from combat zones in Iraq and Afghanistan with a promise. As he settled back into life stateside, he wanted to offer a meaningful tribute to his fellow service members — especially those who never had the chance to come home.
So, in 2015, he started playing a recording of taps — a military bugle call most often heard at sunset and at military funerals — on his five-acre property in Glen Rock, a small town of 2,000 people near the Pennsylvania-Maryland border. Every evening before 8:00 p.m., Lt. Commander Corney would offer the musical testament to all who have served.
“I play this audio memorial in remembrance of those who paid the ultimate sacrifice as well as those who continue to serve and protect our country and freedoms,” said Lt. Commander Corney, who is represented by lawyers from the ACLU of Pennsylvania. “It is a way to honor a promise I made to God — by taking 57 seconds each day to reflect on sacrifices made 24 hours a day, 365 days a year to obtain and sustain our freedoms.”
For nearly two years, his tribute went on with little controversy. The borough allows other music to be amplified on a regular basis, including church hymns and bells and live performances at a local restaurant. At less than a minute long, the recording of taps was one of the borough’s shorter pieces of amplified music. When one neighbor approached Lt. Commander Corney about a year ago to ask if he could turn down the volume, Corney accommodated the request by reorienting the speakers away from the neighbor’s home. But this spring, the controversy erupted when another neighbor complained to the borough.
In response, the borough ordered Corney to limit the playing of taps to Sundays and what it termed “flag holidays.” Each violation of the borough’s order would bring a criminal fine of 300 dollars. But the borough’s enforcement action involves two big constitutional no-nos: the heckler’s veto and content-based censorship.
The borough is relying on a nuisance ordinance that prohibits sound that “annoys or disturbs” others. In a patriotic town like Glen Rock, which is home to many military veterans, it’s no surprise that Lt. Commander Corney has many supporters. But a single complaint triggered the enforcement action. If a “heckler” could shut down anyone who said or played something that annoyed or offended them by complaining to government officials, freedom of speech would be no more. For more than 75 years, it has been black letter First Amendment law that the government cannot censor speech simply because it is not universally appreciated.
Moreover, the borough cannot use its vague nuisance ordinance to single out only Lt. Commander Corney’s musical expression for censorship from the range of sounds that are part of the borough’s regular sonic landscape. The borough has not ordered Lt. Commander Corney to lower the volume of taps or claimed he has violated a noise-level ordinance.
And it could not claim such a violation because the recording neither exceeds any established noise levels nor is it as loud as many other sounds the borough tolerates — including many sounds that do not communicate a message, like lawnmowers, leaf blowers, chainsaws, and vehicles. Censoring clearly protected expression, like taps, for being too loud, while allowing louder sounds that carry no constitutionally protected message turns the First Amendment on its head.
The borough has decided that taps alone, among the other musical sounds in the borough, must be silenced. The borough may not make this type of “content-based” distinction without some compelling reason, which doesn’t exist in this situation.
Last week, the ACLU of Pennsylvania sent a letter to the borough council to insist that Glen Rock drop its threat to fine Lt. Commander Corney and honor his First Amendment right to free expression. The dispute is not yet resolved, but on Friday the borough indicated that it would review the ACLU’s demand at its regularly scheduled July 19 meeting. In the meantime, Lt. Commander Corney will resume his nightly ritual.
Free-speech cases often arise in unusual settings. Some people may be surprised that a serviceman’s broadcast of taps — a song widely regarded as patriotic and intended to honor the sacrifices of those who place themselves in harm’s way to fight for our constitutional rights — would end up being the focus of a First Amendment censorship battle. This controversy is a reminder that no matter who you are or your station in life, you may need the Constitution.