Debate forum: 06/24

Debate forum: 06/24

Forum Center: Ice cream truck music threatens to divide the Union

By Alex Culpepper

Illustration: Jed Helmers

A common song to hear jingling from an ice cream truck on a summer’s day is “Turkey in the Straw.” The tune has its Scots-Irish heritage and is quite old, but an NPR story a couple months ago has associated it with a heritage that’s not so benign. The melody from that song had been apparently co-opted for a long time by singers in blackface minstrel shows, and in 1916 Columbia Records released a song using the “Turkey in the Straw” melody but changed the words and gave it a new title: “N***** Love a Watermelon, Ha! Ha! Ha!”

The Turkey song rolling from ice cream trucks is most likely honoring the non-racist version of it, but this musical discovery has many people shocked, disappointed and even angry, and it might add to the reasons why some people don’t want to hear ice cream truck music at all.

Apparently, ice cream truck music is annoying people in this country. As the trucks slowly roll through the nation’s neighborhoods spinning their tunes, people cover their ears, run for cover in their homes and even lodge complaints with city councils. At least, that’s what folks in a few California towns would have you believe. And even in New York City, it’s a reportable offense to play music from an ice cream truck while it’s stopped.

Opponents of ice cream truck music say it is a nuisance. Hearing the daylong ring of old music without words is just too much for them, they say. It cuts into conversation, it drowns out their own music and if someone has an early bedtime, it’s simply unbearable – according to opponents. Some opponents say they really don’t want to relive their depressing childhoods through ice cream truck music and are forced indoors with nothing else to do but watch awful TV programs. Some of them further say the number of trucks has increased, and the music is therefore much louder and disjointed as competing trucks jockey for the streets with the prettiest stay-at-home moms.

Supporters of the ice cream truck music say these anti-music people are wicked and spiteful, bent on ruining everyone’s summer fun for their own selfish reasons. Supporters say the wordless folk melodies and terrible ragtime riffs are a time machine, taking them back to childhood summers and the memories that go with them: the hum of air conditioners, the splash of a garden hose on a hot day, bee stings and visits from little-known, out-of-town relatives sleeping in their beds and using their bathrooms. Besides, they also say, some distrustful people already think the ice cream man phenomenon is a little creepy. Just imagine how creepy it would be without happy, wordless music.

Ice cream trucks are Americana, much like uneven sunburns, getting hot dogs from gas stations and colored toilet paper. They make other countries seethe with jealousy and were viewed during the Cold War as a clever, inexpensive way to taunt the soviets. The controversy continues, and both sides are gearing up for a fight.

Reach DCP forum moderator Alex Culpepper at AlexCulpepper@DaytonCityPaper.com

Debate Forum Question of the Week:

Should ice cream trucks be banned from playing loud, wordless music?

Debate Right: The silence of the ice cream man

By Ben Tomkins

Perhaps you’ve noticed certain people in this world develop a sociopathic neurosis which instills within them the delusion that parcels of public property should be subject to their private governance once they reach a certain age.

This ice cream truck nonsense is a fantastic example. After many years of progressively more audible mutterings like, “how are people supposed to sleep with that racket going on?” even though it’s two in the afternoon, at some point the thought sets in that, if the ice cream truck owner could turn their music off, they actually should.

They start calling the city, showing up at petty neighborhood meetings nobody else with a job and a life has time to attend and generally become a nuisance, until finally some weary public official has too many long days in a row and caves just to shut them up.

However, because it was easier to give in to their demands than stand firmly on the principle “public” means sometimes we have to actually tolerate other people, we have only made it harder to shut them up the next time, because their insane arguments have now been validated.

But they still wake up sometimes, don’t they? Wake up in the dark, with the children screaming? Do they think if they destroy the truck they can make them stop? Do they think, if the trucks stop, they won’t wake up in the dark, ever again, to the screaming of the children?

You see, the terrible truth of the ice cream truck is they have brought it upon their own heads.

You will listen … now.

When a mommy and a daddy love each other very much, sometimes the stork brings them an obese little bundle of headcheese that loves nothing more than to spin in angry, hateful circles and flail its porky fat arms around while screaming at the top of its lungs because mommy and daddy are unreasonably limiting its greedy ingestion of the frozen treats being hawked by the jingling local ice cream truck.

On that occasion, as the sounds of “Turkey in the Straw” ominously echoed through their street, mommy and daddy had the mental and emotional reserves to wait out the bundle’s tirade until the truck had passed. But by night, they were so drained from the experience, they had an extra four glasses of wine apiece at dinner. Mommy started passive-aggressively snipping at daddy, but innocently pretended she wasn’t when he got annoyed, and told him he was the one with the attitude so as to have ready-made ammunition to lob at him for not helping with the dishes.

After this little chess game had gone on for an hour so without daddy realizing he was playing, he finally got irritated enough to pop his head up from the third-season-of-Sherlock-foxhole he’d been hunkering down in and found to his horror he was no longer in his living room, but staring out at a dark, foggy hellscape of argumentative Soviet tanks about to overrun his position in Long Vei. As a result, he snapped, and referred to her still-visible pregnancy skin flaps as a “sallow, desiccated, Munchian double-image of his failures,” thus prompting one of the 85 or so tectonic fights that inevitably occur over the course of the 15-year average statistical lifespan of an American marriage.

The next day, when that same bundle began to freak out at the first sounds of the ice cream truck, mommy and daddy only had the physical and spiritual reserves to listlessly toss a crumpled dollar bill in the direction where the hollow, echoing screams appeared to be coming from according to the nerve impulses flaccidly rebounding off the backs of their skulls. Later that night, when they both agreed they were drunk and would never speak of it again, the dollar that should have been spent on a condom for makeup sex, instead of pacifying the bundle, resulted in the creation of another little beast to suckle off the ice cream truck of mommy and daddy’s humanity.

Unfortunately, by the time those two bundles were old enough to reproduce, the degradation of mommy and daddy’s neural pathways for memory and judgment eventually erased the trauma of parenthood, and replaced it with idyllic images from photos in the family album. Therefore, it seemed like a good idea to encourage their bundles to have bundles of their own. However, every time the haunting songs of the ice cream truck came wafting over the horizon, the deep-seated subconscious trauma of their experiences resulted in them quickly packing their kids and grandkids back into their minivans like a tuna boat and sending them back to whatever crappy suburb they came from.

Of course, those long car rides home resulted in similar situations to the one described above, except every time the cycle of birth repeats itself the ice cream trucks multiply exponentially to keep up with demand. That all started back around 1950, and today, the vicious cycle has resulted in many towns having upwards of 50 ice cream trucks to keep up with the demand of all the nasty little children who feed off their parents’ exhaustion, and thereby perpetuate the sick Freudian poiesis of the human experience.

Doctor, Good Humor Man … I believe you know each other?

Ben Tomkins is a violinist, teacher, journalist, and critically acclaimed composer currently living in Denver, Colo. He hates stupidity, and generally believes that the volume of one’s voice is inversely proportional to one’s knowledge of the issue. Reach Ben Tomkins at BenTomkins@DaytonCityPaper.com.

Debate Right: Let the music play for snow cones

By Rob Scott

Many times, I have clients who want to bring a lawsuit against someone for doing something that, frankly, is meaningless or petty. This happens more than most know regarding domestic relations or an annoying neighbor who smells funny.

As always, I inform the client of their legal rights and give them the specific legal claims they can lodge, including the typical price tag for doing so. However, probably the most important advice I provide them is alternative solutions to their problem that commonly work the issue out. My philosophy as part of practicing law is counseling clients on the best resolution possible for the overall best result at the lowest cost. 

Currently, a council member in the City of Long Beach, Calif., is proposing regulating ice cream trucks and their music. The council member claims residents have been complaining regarding the volume, the music itself and how it is viewed as a nuisance to the community. The council is debating on whether to pass an ordinance regulating the industry and how they operate in Long Beach.

Legally, this issue falls under the First Amendment of the U.S. Constitution which states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

This amendment applies to all state government as well, through the incorporation doctrine of the Fourteenth Amendment. Ultimately, the amendment prevents government from restricting the freedom of speech, with some exceptions the U.S. Supreme Court has provided for commercial speech – this includes ice cream truck music. The right to free speech includes other mediums of expression that communicate a message.

Commercial speech has been defined by the high court as speech where the speaker is more likely to be engaged in commerce, where the intended audience is commercial or actual or potential consumers, and where the content of the message is commercial in character.

Commercial speech, such as advertisements, has been ruled by the Supreme Court to be entitled to less protection under the First Amendment than noncommercial speech. Under the First Amendment, noncommercial speech is entitled to full protection, and any sort of content-based regulation is only valid if it can withstand strict scrutiny. However, commercial speech is not given such deference. For a content-based regulation of commercial speech to be valid, it only must withstand intermediate scrutiny. To pass intermediate scrutiny, the challenged law must further an important government interest by means that are substantially related to that interest. 

Additionally, commercial speech that is false or misleading is not entitled to any protection under the First Amendment, and therefore can be prohibited entirely.

The U.S. Supreme Court, in Central Hudson Gas & Electric v. Public Service Commission, announced a test for evaluating commercial speech regulations that would be used in many subsequent cases. The Central Hudson test recognizes the constitutionality of regulations restricting advertising that concerns an illegal product or service, or which is deceptive. For all other restrictions on commercial speech, however, the Court’s test requires the government show the regulation directly advances an important interest and is no more restrictive of speech than necessary.

Ultimately, if the City of Long Beach wants to pass an ordinance or policy regarding ice cream truck music, the law must comply with the case law precedent. The city will be required to show their content-based regulation must further an important city interest and is related to that interest. The city would need to show their new ordinance either substantially regulating ice cream truck music or outlawing it all together is a true government interest. Long Beach would claim the complaints from their residents and to abate nuisance is needed. However, the city would also need to show their ordinance would be the less restrictive means to further the city’s interest.

To counter, the ice cream truck owners would claim the number of complaints is not enough for the government to pass a restrictive ordinance ending the owners’ ability to advertise. They would claim by outlawing the owner’s ability to ‘advertise’ essentially ends their ability to operate the ice cream truck business. 

My legal opinion is the city could only regulate the ice cream truck music during certain times or have a requirement for all owners to follow regarding the decibel sound levels. The city would not be able to prove a complete restriction is warranted and most likely would be very punitive towards the ice cream truck owner’s business. Regarding the city tackling this issue, I believe it to be a complete waste of resources and taxpayer money. My advice to the city is toughen up a bit and explain to the residents the reality of life.

If the City of Long Beach’s only issue is ice cream truck music, then fine. However, I would bet the city has the same issues any other city faces on a daily basis. Legally, the city can put some restrictions on the ice cream truck music, but practically, why? Ice cream trucks are a part of American culture with children running towards the music to enjoy a summer treat.

Rob Scott is a general practice attorney at Oldham & Deitering, LLC. Scott is a Kettering City Councilman and founder of the Dayton Tea Party. He can be contacted at rob@oldhamdeitering.com or gemcitylaw.com.

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