Be careful where you’re spreading holiday cheer this season. You could wind up in the slammer for six months or pay up to $750 in fines. According to an ordinance approved by the City of Cheyenne in 1897, it’s technically unlawful to Christmas carol without a permit. The 120-year-old law isn’t just a prime example of regulatory nonsense and over-criminalization – it’s a clear violation of protected free speech.

The ordinance states:

Persons desiring to deliver a public address or engage in singing or playing of musical instruments or give any other form of entertainment or advertise upon any streets, alleys, sidewalks or other thoroughfares or public property of the city must state the location for and the time when such address, entertainment or advertising is to be given and obtain a written permit from the mayor. If a noise permit is required, applicants must abide by the licensing provisions of Chapter 5.04. Persons shall obtain the consent of the owner, manager or occupant of the premises in front of or adjoining the place such person proposes to give such address, entertainment or advertising.

Cheyenne, Wyoming, Municipal Code § 5.36.030.

The ordinance is found in a chapter entitled, “Circuses, carnivals, and amusement rides,” but it clearly states that its purpose is “to regulate, license, permit and monitor public addresses, entertainment and advertising on public property. . .” § 5.36.010. While city lawmakers may not have intended to regulate the free speech of average citizens, the ordinance certainly grants that authority.

Here are two reasons the ordinance fails to meet constitutional standards:

First, the law is “overbroad.” A law is considered unconstitutionally overbroad when, as written, the law regulates substantially more speech than the Constitution allows. As an example, the ordinance makes it illegal for a speaker to “address” a group of friends about which food truck to patronize. Any number of words spoken from one person to another could be considered a public address.

Second, the law is unconstitutional as applied. In Ward v. Rock Against Racism, the Supreme Court permits the government to place restrictions on the “time, place, and manner” of some speech as long as the regulation is 1) content neutral, 2) narrowly tailored to 3) serve a significant government interest, and 4) leaves open ample alternative channels for communication.

Cheyenne’s ordinance is obviously “content neutral” because it regulates where speech may be conveyed rather than the type of speech. The City can also show a “significant government interest” in ensuring the flow of traffic, controlling noise, or making sure there aren’t two parades on the same street. However, for a law to be considered “narrowly tailored,” the City must show that it is not burdening substantially more speech than necessary to accomplish its goals.

Here, you’re not allowed to hum too loudly over the volume of your headphones without being in violation, much less protest or hand out leaflets. The law burdens substantially more speech than necessary and it does not consider less restrictive alternatives. In McCullen v. Coakley, the Court called public streets and sidewalks “time-honored,” “sites that have hosted discussions about the issues of the day throughout history.” Accordingly, Cheyenne’s old law presents the possibility of a chilling effect on free speech.

Would the Cheyenne Police Department arrest every member of an elementary school choir for belting out “Jingle Bells” in the Depot Plaza? Of course not. Is your favorite church pastor likely to be fined $750 bucks for proclaiming, “Jesus is the reason for the season,” while crossing the street? Highly doubtful. But, could a citizen wind up with a hefty citation for Christmas caroling on a public sidewalk? Under the current ordinance, yes, it is possible.

Bad laws aren’t always created with malicious intent; and the worse the law, the less likely it is to be enforced. However, we must all be vigilant of laws that stand even the slightest chance of limiting our constitutional liberties and fight to see them repealed.