South Carolina City's Restriction on Loud "Vulgar" Music Violates First Amendment

From Moshoures v. City of North Myrtle Beach, decided today by Fourth Circuit Judge Toby Heytens, joined by Judges Albert Diaz and Julius Richardson:

A city ordinance makes it a crime "to broadcast obscene, profane or vulgar language from any commercial property" above certain volumes at certain times. A bar owner sued, arguing the ordinance violates the First Amendment. This appeal involves only the portion of the ordinance restricting "vulgar" language. [The district court enjoined the "profane" language restriction, and the City didn't appeal that decision. -EV] …

While restricting noise generally, the ordinance creates special rules for "[t]he use of sound equipment to broadcast obscene, profane or vulgar language" from specified locations. The ordinance also defines "obscene," "profane," and "vulgar." As defined by the ordinance:

Obscene means description of sexual conduct that is objectionable or offensive to accepted standards of decency which the average person, applying North Myrtle Beach community standards would find, taken as a whole, appeals to prurient interests or material which depicts or describes, in a patently offensive way, sexual conduct or genitalia specifically defined by S.C. Code Ann. § 16-15-305, which, taken as a whole, lacks serious literary, artistic, political, or scientific value….

Profane means to treat with irreverence or contempt, crude, filthy, dirty, smutty, or indecent….

Vulgar means making explicit and offensive reference to sex, male genitalia, female genitalia or bodily functions.

[T]he ordinance's restrictions on broadcasting obscene language are a perfect match with the Supreme Court's constitutional definition of obscenity and thus cover all language that meets that constitutional definition and no language that does not.

In sharp contrast to its definition of obscene, the ordinance's definition of vulgar uses none of the buzzwords associated with the canonical constitutional definition of obscenity, including "prurient interest," "patently offensive," or "community standards." The ordinance's definition of vulgar also is not limited to "sexual conduct specifically defined by the applicable state law," and instead sweeps in any "explicit and offensive reference to sex, male genitalia, female genitalia or bodily functions." Finally, the ordinance's definition of vulgar also omits two critical constitutional limits that are present in its definition of obscene: that the work in question must be "taken as a whole" and that even the most disturbing or patently offensive speech is not obscene so long as it has "serious literary, artistic, political, or scientific value." …

Older readers may be familiar[, for example,] with the Miami-based hip hop group 2 Live Crew, whose 1989 album As Nasty as They Wanna Be generated numerous threats of obscenity prosecutions. Any person who hears nearly any song on that album would likely agree that it "mak[es] explicit and offensive reference to sex, male genitalia, female genitalia or bodily functions" and thus falls squarely within the heartland of how this ordinance defines vulgar…. Yet that same album was deemed not obscene in a constitutional sense because it had not been shown to lack "serious artistic value" and was thus constitutionally protected. As we have explained, that same limitation is present in the ordinance's definition of obscene but absent from its definition of vulgar….

"[C]ontent-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests." We conclude the vulgar-language provision triggers and fails that level of strict constitutional scrutiny.

First, the vulgar-language provision is content-based. That provision is not a generally applicable noise ordinance. Instead, it imposes strict limits on "[t]he use of sound equipment" based solely on the type of "language" being broadcast….

Second, the vulgar-language provision reaches at least some "constitutionally protected" speech. The First Amendment "permit[s] restrictions on the content of speech in a few limited areas." One such category is "obscene" speech, which is "fully outside the protection of the First Amendment," and thus may be regulated by laws that single out obscene speech for disfavored treatment. But as we have explained, the vulgar-language provision reaches past the constitutional definition of obscenity and grabs hold of some speech that is simply, well, vulgar. And speech that is "vulgar or offensive"—but not obscene—"is protected by the First and Fourteenth Amendments." ….

Third, the vulgar-language provision fails strict scrutiny. The defendants identify various interests served by that provision, including "the protection of children and of captive audiences and unwilling listeners, as well as the protection and preservation of the City's neighborhoods." Those are all legitimate interests, and, like the district court, we assume for purposes of our analysis that at least some of them can sometimes be compelling. We nonetheless conclude that the vulgar-language provision cannot survive strict scrutiny because it is not "narrowly tailored to serve" the interests the defendants identify here.

To begin, the vulgar-language provision suffers from the same over-inclusiveness problem that the district court identified with the profane-language provision. As the district court explained, the vulgar-language provision "necessarily interfere[s] with Moshoures' First Amendment freedom to broadcast [vulgar] language which may be heard by adults," including those who "consent" to hearing such language "outside of Sky Bar." Cf. Cohen v. California (1971) ("one [person's] vulgarity is another's lyric").

The vulgar-language provision is also "wildly underinclusive" with respect to the city's asserted aims. Most obviously, if the goal is to "protect[ ] and preserv[e]" the city's neighborhoods from excessive noise, there is no need for a content-specific ordinance at all, much less one that requires certain categories of disfavored speech to be played at much lower volumes than all others….

The city's avowed interest in protecting children fares no better. On this record, we cannot say how many of the children the city seeks to shield from hearing vulgar music in public places "have parents who care whether they" hear it, so the vulgar-language provision may well be overinclusive as to those "young people whose" caretakers think such music is "a harmless pastime" or even has affirmative value. And the defendants' suggestion that the city may limit speech in public spaces "to only what is fit for children" is unavailing. Reno v. ACLU (1997); see Cohen (rejecting the argument that California could make it a crime to wear a jacket with the words "Fuck the Draft" in public to protect "unwilling or unsuspecting viewers"); Butler v. Michigan (1957) (government may not "quarantin[e] the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence")….

Like the problems of excessive or ugly signage involved in Reed, policymakers have ample tools to deal with loud and offensive speech in public spaces. Speech that is not protected by the First Amendment may be prohibited outright—including obscenity, defamation, incitement, and "speech integral to criminal conduct." Policymakers may also impose generally applicable time, place, and manner restrictions—including limits on the use of amplified sound—without triggering strict scrutiny so long as they do so "in an evenhanded, content-neutral manner." What the city may not do is single out a subset of constitutionally protected speech for special disfavored treatment in public spaces because some (or even most) citizens would prefer not to hear it.

The court didn't discuss the holding of FCC v. Pacifica Foundation (1978) that upheld a restriction on broadcasting vulgarities on radio and television, likely because that case has essentially been limited to over-the-air broadcasting; indeed, the City didn't cite Pacifica in its brief.

Meredith Dyer McPhail and Allen Chaney (ACLU of S.C.) represent plaintiff.