Corvallis resident Jim Ellison was found innocent last week on charges he violated the city's noise ordinance. The decision, handed down by Judge Mark Donahue in Corvallis Municipal Court, upheld Ellison's right to free speech protected under the First Amendment to the U.S. Constitution.

Ellison was cited in December for violating the city's noise ordinance when a Corvallis police officer asked him to stop playing his drum. Ellison, 54, who had been beating the drum at the daily anti-war demonstration in front of the Benton County Courthouse ever since October 2001, refused.

The drum was confiscated, and Ellison was given a ticket for a noise violation.

Ellison believed the ordinance, which prohibits playing a musical instrument loud enough to be heard 50 feet away, was misapplied in his case. He pleaded not guilty and argued that being prosecuted under the ordinance was a violation of his right to free speech.

In preparation for a May Municipal Court trial, Ellison wrote a six-page argument citing previous cases that dealt with demonstrations and the right to free speech.

Last week, Ellison was happy to learn that he had been found innocent.

"I felt as if the wheels of justice had turned," Ellison said.

In his decision, Judge Donahue stated that the facts of the case were not in dispute. Ellison's drumming could be heard at a distance greater than 50 feet.

But when taking into account the time, place and manner of the drumming, Donahue ruled that the city's noise ordinance could not be used to prosecute Ellison for conduct that is protected by the Constitution.

Donahue referred to the case of United States v. Doe argued in the U.S. Court of Appeals in 1992.

In the case, political protester Diane Nomad had been charged with violating a federal regulation that prohibits playing a musical instrument above a prescribed decibel level in a national park. Nomad was beating a drum as part of a political protest in Lafayette Park, across the street from the White House in Washington, D.C.

The appellate judges ruled in favor of Nomad because the regulation was too narrowly tailored to apply it to a national park that also serves as a public forum. The judges also took into consideration the amount of ambient noise generally present in Lafayette Park, which would make Nomad's drumming seem inconsequential.

Donahue said there was no significant difference between the Nomad and Ellison cases and stated that it was significant that Ellison's drumming took place at a time and location where it is reasonable to expect some increased noise — for example, traffic on Fourth Street at rush hour.

"The Corvallis noise ordinance prohibits all sounds that meet the listed criteria, and it makes no attempt to include regulations, or tailor its restrictions, so as to achieve the city's interest in peace and quiet and still allow constitutionally protected expression," wrote Donahue.

Ellison got his drum back in May. Though he did a lot of homework and research to argue his case, Ellison said he doesn't think he's set a legal precedent.

"I was hoping (Judge Donahue) would be more specific on what protesters can or cannot do," Ellison said. "We could bring a 40-piece drum band out, but it's not a pressing issue for us at the moment."

Ellison still protests in front of the courthouse every day. But he said he has recently switched to blowing bubbles, which he hopes will draw more attention to the anti-war demonstration.

And if he should get a ticket for blowing bubbles, Ellison said, "I'd fight that one, too."