1250 Broadway, 27th Floor New York, NY 10001


Noise. It's a menace to us all. And, an ugly reality of urban living. Yet, what does one do when things get a bit bothersome or extreme and the police won't intervene? And, better yet, what if the people who are causing this "nuisance," are a bunch of union organizers who are assembled in front of your building "striking, pounding, beating, drumming, or banging" upon "plastic or metal containers, buckets, drums or cans" for days on end?
Those were the questions presented to the Honorable Martin Shulman, Justice of the Supreme Court, New York County, in the case of Helmsley-Spear, Inc. v. Fishman. In that particular dispute, members of SEIU Local 32B-32J and AFL-CIO were protesting work conditions, low wages and "non-existent benefits," for nonunionized security guards employed at the Empire State Building. According to the court's decision, between November 23, 2005 and February 14, 2006, the ruckus caused by the protesters took place on at least 18 different days and lasted for "long periods of time," disturbing tenants, tourists, and storefront businesses.
The union members countered that the sound effects were needed to "draw attention to its handbilling activities." Given all the distractions pedestrians typically encounter while traversing city streets and sidewalks, the organizers claimed that the sound effects were necessary to "enhance" the communication of the union's message regarding the unsatisfactory wages, benefits and work conditions at the building. Otherwise, they feared, their efforts would be lost in the usual din generated by street and sidewalk traffic (such as vendors and other leaflet distributors).
During the course of these protests, sound-meter readings were taken and it was determined that the cacophony caused by the group measured as high as 95 decibels, compared to usual ambient noise levels of 74 to 80 decibels. Since a high measurement is known to trigger "stress" and "psychological harm," the Court expressed concern for the dangers posed by the protesters' conduct. (Per testimony elicited at a hearing held by the Court, Justice Shulman also ascertained that noise levels above 90 decibels can cause "anger and belligerent behavior.") As the Court noted in its decision:

Noise pollution is clearly an unwanted but necessary evil. Because noise pollution does not typically kill anyone, its potential for harm is clearly overlooked. Surely, no one would disagree that prolonged exposure to certain levels of noise pollution can cause hearing loss and mental disturbance. Even a minor, persistent noise like a dripping faucet can be jarringly distracting. True, a person's annoyance threshold for noise is subjective. But, sound levels can be measured and noise pollution, where possible, needs to be controlled to minimize the harmful exposure.
Finding that the protesters could continue their union-organizing activities without the addition of unreasonable noise, Justice Shulman granted the building owner's request for an order prohibiting the "banging racket." Clearly, the court sought to avoid exposing the public to unruly racketeering.
For a copy of the New York County Supreme Court's decision in Helmsley-Spear, Inc. v. Fishman, please click on the following link:
On April 19, 2007, the Appellate Division, First Department, reversed the Supreme Court's decision in this case. The AD1 concluded that any restraints violated federal law.
For a copy of the AD1's decision, please use this link: http://www.nycourts.gov/reporter/3dseries/2007/2007_03340.htm