The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
String-Instruments-Only City Rule for Restaurant's Outdoor Music Is Unconstitutional Content-Based Restriction
From Red, White & Booze, LLC v. City of St. Pete Beach, decided yesterday by Judge Kathryn Kimball Mizelle (M.D. Fla.):
A city-issued permit allows a restaurant to play outdoor music using only string instruments and allows amplified music for only a few hours each weekend…. Because I conclude that the permit's prohibition of certain kinds of instruments is a content-based restriction on First Amendment-protected expression and the city fails to show that the conditions survive strict scrutiny, I preliminarily enjoin the city from enforcing parts of the permit….
Some excerpts from the court's long analysis:
[1.] The First Amendment protects music, including instrumental music…. [I]nstrumental music can be communicative in at least two ways apart from lyrics ….
First, instrumental music can communicate by association. Certain tunes or musical arrangements, even those without words, can become associated with a concept or message such that the music itself carries that message independent of any verbal accompaniment. For example, John Phillips Sousa's "Stars and Stripes Forever," usually performed without its little-known lyrics, conveys a sense of American national pride through long association with patriotic occasions, even in listeners who may not know the song's patriotic name….
Second, and perhaps more fundamentally, instrumental music is expressive in its own right. It can lift up or cast down the spirit, raise the mind to heaven or distract with terrestrial matters, and stir the human soul to heroic or base deeds, all of which prove instrumental music's power to communicate. Music can evoke these responses in a hearer "completely disassociated from titles, linguistic signals, and other forms of art."
The inherent power of instrumental music to communicate has been recognized for millennia and by many. See, e.g., Plato, The Republic l. 401d (Allan Bloom trans.) ("[R]hythm and harmony most of all insinuate themselves into the inmost part of the soul."); St. Thomas Aquinas, Summa Theologica Pt. II-II, Q. 91, Art. 2 (Fathers of the English Dominican Province trans.) ("[It] is evident that the human soul is moved in various ways according to various melodies of sound.")….
[2.] Music is "[t]he art or science of combining vocal or instrumental sounds to produce beauty of form, harmony, melody, rhythm, [and] expressive content." Music's content, then, is the way in which different sounds are combined to create a particular expressive musical work. Thus, a regulation that prohibits certain musical combinations of sounds is content based, while a regulation that may be justified without reference to how sounds are combined to create instrumental music is not….
For example, the regulation in Ward v. Rock Against Racism (1989) was content neutral because it did not regulate which sounds may be used or how they may be arranged. In Ward, the Supreme Court upheld a New York City regulation requiring private parties renting a Central Park bandshell to use a city-provided technician and sound equipment to control noise. Because "the city require[d] its sound technician to defer to the wishes of event sponsors concerning sound mix" and the policy otherwise limited only noise levels, not what kinds of music the performers could play, the Court concluded that the regulation had "nothing to do with content." …
Ordinances that restrict which instruments may be used, on the other hand, distinguish based on a musical work or performance's content. One of the "large array of elements" that makes up a musical composition or performance is "timbre." "Timbre," also known as "tone color," is the "quality of sound characteristic of a particular type of instrument or voice, as opposed to its register or pitch." For example, while Beethoven's Moonlight Sonata (originally for piano) may be arranged for classical guitar, the piece's content is altered by the change in instrumentation. And one would be hard pressed to claim that Disturbed's heavy-metal cover of The Sound of Silence left unaltered the content of Simon & Garfunkel's original acoustic version….
While the City does not address it, instrument-based regulations pose a real risk of "excising certain ideas or viewpoints from the public dialogue." Regulations of instruments (or other components of music) might have the effect—or be enacted for the purpose—of suppressing musical expression that depends on those instruments. In the case of New York City's cabaret laws, for example, a city regulation "permit[ed] only a piano, organ, accordi[o]n, guitar or string instrument" in jazz clubs and coffeehouses. Though these regulations spoke in "a lingua franca of zoning policy," they were at least arguably motivated by "racism, the contempt for vernacular arts, [and] the fear of what is oppositional or bohemian," including the desire to suppress jazz music. A New York court ultimately refused to enforce the instrument-based restriction, and the city removed it.
To be sure, there is no allegation here that any impermissible purpose motivated the City. Based on the record that the parties submitted, noise reduction, particularly near residential areas, seems to be the goal. Yet "[i]nnocent motives do not eliminate the danger of censorship presented by a facially content-based [rule], as future government officials may one day wield such statutes to suppress disfavored" expression. Instruments are central to music's communicative content, and instrument-based regulations, even if enacted for a content-neutral purpose, risk suppressing musical expression based on "its message, its ideas, its subject matter, or its content." …
[3.] Because the City contends that intermediate scrutiny applies, the City does not argue that the permit survives strict scrutiny [the test for content-based speech restrictions -EV]. Accepting that the City has a compelling interest in limiting excessive noise, nothing in the record shows why a total ban on non-string instruments and bass and a capacious limitation on amplification is "the least restrictive means of" doing so. That conclusion is hardly surprising, given that the Supreme Court has only once held that a law triggered yet survived strict scrutiny in the First Amendment context. Free Speech Coalition v. Paxton (2025) (citing Holder v. Humanitarian L. Project (2010)). The Restaurant has therefore made a substantial showing that the permit violates its First Amendment right to free speech and that it is likely to succeed on the merits….
Kyle David Bass and Timothy W. Treble Weber (Weber, Crabb & Wein, PA) represent the restaurant.
