The Volokh Conspiracy
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Enough with the Piano!
From Lupton v. Kardash, decided Thursday by the Hawaii Intermediate Court of Appeals (Judges Keith K. Hiraoka, Clyde J. Wadsworth, and Kimberly T. Guidry):
Following a bench trial, the District Court enjoined Kardash from, among other things, contacting, threatening, or harassing his neighbor [Lupton] … for a period of three years…. The uncontested FOFs [Findings of Fact] … stated:
[25.] [Lupton] testified that after [Kardash] moved in [Kardash] installed security floodlights which were directly aimed into [Lupton]'s residence and were continually kept on during hours of darkness ….
[26.] [Lupton] testified that the effect of the security floodlights from [Kardash]'s home caused [Lupton]'s bedroom to be lit up which makes it extremely difficult for [Lupton] to sleep at night …. [Lupton] testified that she asked [Kardash] at the outset if he could direct his security floodlights so that it was not pointed directly into her home and [Kardash] replied that [Lupton] should "buy some black out curtains." ….
[32.] [Lupton] testified that [Kardash]'s extremely loud piano playing would sometimes last for 3 to 4 hours and would occur at all times of the day and night to include 7:00 am in the mornings on holidays and as late at night as 10:30 and 11:00 pm.
[33.] [Lupton] testified that she worked at home remotely during the pandemic and that her work required the constant and consistent use of her telephone. Callers commented that they could not hear [Lupton] clearly over the telephone because of [Kardash]'s piano playing in the background and consequently, [Lupton] was called back to work at the office and could not work remotely.
[34.] [Lupton] testified that [Kardash] started to display caricatures, cartoons and photographs that depicted contextual messages to the neighbors that were posted either on a wooden pole or attached and taped to the City & County grey trash bin … and/or blue recycle bin located on [Kardash]'s property and facing the public roadway.
[35.] [Lupton] testified that the caricatures and cartoons included content that contained implicit graphic sexual depictions and some that depicted firearms and were violent in nature.
[36.] [Lupton] testified that she became aware from her neighbors that [Kardash] referred to her as "Jabba the Hutt" based on her physical appearance, of which several of these caricatures depicted.
[37.] [Lupton] was also of the belief that [Kardash] also referred to [Lupton] as a pig and that several of the caricatures included the face of a pig with her hairdo ….
[39.] [Lupton] testified that on June 19, 2023, [Kardash] displayed a picture of [Lupton] and her minor daughter on the City & County grey trash bin located on [Kardash]'s property and facing the public roadway, and labeled the photo of [Lupton] as "Karen"….
The court entered [an injunction] with special conditions, including that: (1) "No noise, music, piano, television, stereo, or sound reproduction device shall be heard 50 or more feet away[,]" measured from the point where the sound is audible to Kardash's residence or to the sound source if not within the residence (Special Condition 1); (2) "Kardash will cease and desist from making statements with the intent to harass[,]" which statements "shall not [be made] to a third party, or [by] displaying any photographs, caricatures or cartoons regarding [Lupton]" … (Special Condition 2); and (3) "Kardash shall not direct or shine his residential floodlights into the home and property of … Lupton" (Special Condition 3)….
Kardash didn't raise a First Amendment objection to what strikes me as an overbroad and content-based Special Condition 2. But he did object to the piano restriction:
Kardash appears to contend that the District Court mistakenly relied on Moysa v. Davies (Haw. App. 2009), in finding that he harassed Lupton. In Moysa, this court affirmed in part and vacated in part an order granting an injunction against harassment. Specifically, this court affirmed the order with regard to a [condition] that prohibited the respondents from "play[ing] any music, sermons, or anything else on a television, stereo, other sound reproduction device such that the sound can be heard thirty (30) feet or more away" …. {We held that this provision did not violate the respondents' right to free speech because it did not restrict the content of the sound, but rather its volume.} The Hawai'i Supreme Court vacated this court's decision as to the noise restriction, concluding that this court lacked jurisdiction to decide the issue, due to an untimely appeal.
In any event, Kardash contends that because the piano produces rather than reproduces sound, this court's decision in Moysa regarding the noise restriction (presumably to the extent it has persuasive value) does not support the finding of harassment in this case. We are not persuaded by this distinction.
The relevant evidence here was that Kardash played the piano at "an extremely loud level" for extended periods "at all times of the day and night" as part of an intentional course of harassing conduct directed at Lupton, i.e., the issue was the volume and timing of the loud sound emanating from Kardash's property, not its source or content. See State v. Ewing (Haw. App. 1996) (holding that a Honolulu ordinance that prohibited playing a device for sound reproduction from a vehicle at a volume audible from 30 feet from the source of the sound, was not overbroad so as to infringe upon free speech because it "does not regulate the content of the sound from the reproducing device."). Hawai'i law supports the finding of harassment in these circumstances.
