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 genitali
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