Enough with the Piano!

Kardash appears to contend that the District Court mistakenly relied on Moysa v. 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.

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.