A Small Town in Pennsylvania Is Treading on This Naval Officer’s First Amendment Rights

Pictured: Lt. Com. Joshua Corney stands in front of his loudspeakers on his property in Glen Rock, 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.

This controversy is a reminder that no matter who you are or your station in life, you may need the Constitution.

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.

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Anonymous

He's playing his music at 8pm. Well within the hours or normal function. He's not blasting it at all hours of the night or the split crack of dawn. I and my family have always worked night shifts and odd hours, unfortunately its just the penalty of the shift that sometimes you have to deal with the world going on outside your window, it sucks but you learn to deal. I never served and salute you and his service for my right to say, he has every right to to play whatever he wants on his property as long as he obeys the law, which the article clearly states he does. In different context: What if your hypothetical policeman lived near a church that played chimes or bells. Should the church shut down its hymnals disrupting the worship of everybody in that congregation for just one person. Oh and of course there's the mention of the fact that lawnmowers and leafblowers are also louder then his taps. So no gardening is allowed either. No loud noises ever because it might disturb one person. No expression ever. No. The church is protected, and he is protected. If he was playing it at 11 at night to rattle the windows then this argument might hold water, but he is being respectful, but has a right to his expression. Period.

Terry

Thank you for this well reasoned argument.

Terry

Thank you for this well reasoned argument.

Anonymous

is his music louder then what motorcycles are allowed to emit?

you can't pick the content only the volume.

True Veteran

So you think its OK for a Church to ring a bell every hour, someone to run a chainsaw all day long, or a Restaurant/Bar to play loud music till the morning hours but it isn't for a Veteran to play one minute of taps. What about if it was a large US flag and a neighbor took offense that it ruined their view?
I don't know what "Proud Veteran" fought for but I didn't fight to protect someone's 8PM nap but for the Constitution! Men, and Women, have fought and died not for someone's evening nap but for the right if folks to express themselves without censorship!

PS
Taps didn't originate on a base but in the Field during the Civil war by Col. Dan Butterfield and later was used at military funerals in place of a three gun salute.

Anonymous

1. Free expression is not predicated on that expression traveling a limited distance. The first amendment makes no exception of how many acres an expression may travel before it is no longer acceptable.

2. Disregards selective application. The article specifically mentions sounds that are louder and not natural. Selective application of enforcement is not rule of law, it is rule by fiat, and therefore has no place in society.

3. Because he can. He needs no further justification than that.

4. What if?
4.5 See answer to 2. Selective application is not rule of law, these odd hours workers are not complaining about louder, later noises. In fact, they aren't complaining at all, save one person, so the point is not only invalid, it is nullified.

As for the notion that the bugle call belongs in base, this has to be the first time I've seen an argument bordering on "Stolen Valor" based on music.

So we have a Stolen Valor argument to protect hypothetical neighbors who don't exist from sounds quieter than other sounds that magically are not themselves a nuisance because this person did not justify to you personally his desire to express himself in this manner.

That is certainly unique, I'll give you that.

Westernwynde

I totally agree. This isn't just expressing yourself. It's playing the same damn thing every day at the same damn time. If I wanted to play "Sympathy for the Devil" every day at 6 PM, over a loudspeaker, should that be protected speech?

This community just needs a better written noise ordinance.

Anonymous

So, you're singling out this man because he plays music over a loud speaker? You find this intrusive? I find the loud pipes on motorcycles to be a nuisance so should Harley riders be fined $300 every time they pass my home? I don't like lawn mowers either or loud music being played in cars. What's the difference? If you agree with banning this demonstration of patriotism, then you must certainly agree with me that loud motorcycles, live concerts and loud music must also be banned?

Anonymous

Impressive. Thank you for your service. Thank you for being level headed enough to side with the community.

Another Proud V...

Guess they better jump on banning those Church bells as well.

As you said, noise is pollution, right?

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