• By On 24 March 2025 In Law

    Can a Noise Restriction Violate the First Amendment?

    In MOSHOURES v. CITY OF NORTH MYRTLE BEACH (2025)

    A case from South Carolina dealing with free speech, vulgar speech, obscene speech and commercial speech, a city ordinance made 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. The 4th Circuit Court of Appeals held: “The district court declined to enjoin the vulgar-language provision because it viewed it as only restricting speech that is obscene as a constitutional matter and thus could be prohibited entirely. We disagree. Applying well-settled principles of statutory construction, we conclude the vulgar-language provision reaches at least some constitutionally protected speech and that it is constitutionally invalid.”

    Translation: The city’s volume control ordinance was unconstitutional in part because its limitation to vulgar speech was overbroad.

    In 2021, the city amended its general noise ordinance to impose special restrictions on “[t]he use of sound equipment to broadcast obscene, profane, or vulgar language from any commercial property, private property, public right-of-way or city property.” Between 7:01 a.m. and 10:59 p.m., such sounds may be no louder than 30 decibels—roughly equivalent to rustling leaves or a whisper—“as measured from the boundary with the adjacent neighboring commercial property, private property, public right-of-way or city property.” Between 11:00 p.m. and 7:00 a.m., such sounds cannot exceed 50 decibels—somewhere between average home noise and normal conversation. Like other provisions of the city’s noise ordinance, violations are punishable by up to 30 days in jail and fines of up to $500.

    The ordinance also defines “obscene,” “profane,” and “vulgar” as:

    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.

    In short, the court ruled:

    The First and Fourteenth Amendments prohibit the city and its officials from “abridging the freedom of speech.” U.S. Const. amend. I; see Reed, 576 U.S. at 163, 135 S.Ct. 2218. Although First Amendment doctrine can be intricate, one of its most basic rules is that “[content-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.” Reed, 576 U.S. at 163, 135 S.Ct. 2218. 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. If Moshoures were content to play only instrumental music that one might hear in an ice cream shop or inoffensive pop songs like Vanessa Carlton’s A Thousand Miles, the vulgar-language provision would have no application to him. But because he wants to play music that some might consider less wholesome, he must keep it (way) down or risk fines or imprisonment. “That is textbook content discrimination.” Grimmett, 59 F.4th at 694.

    While decisions of the 4th Circuit are not binding here in the 9th Circuit, the case is noteworthy relative to commercial speech analysis (something we do care about) in part because of its novelty (a speech restriction based on noise volume applicable only to certain content). Had the city applied the noise restriction across the board, regardless of the content of the speech, the ordinance would probably have been upheld.

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