South Carolina nightspot sues city over noise ordinance targeting “obscene, profane, or vulgar” language

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The American Civil Liberties Union of South Carolina (ACLU-SC) filed a lawsuit against the city of North Myrtle Beach on behalf of a nightlife venue, claiming a new noise ordinance violated freedom of speech. 

Key Players

The ACLU-SC, a nonprofit affiliate of the national ACLU, defends the “rights to equality, liberty, and justice for all South Carolinians and beyond.”

Michael Moshoures owns Sky Bar, a nightlife venue in North Myrtle Beach.

Further Details

The city of North Myrtle Beach, located in Horry County, South Carolina, is one of the primary tourist destinations along the Grand Strand, a 60-mile string of Atlantic beaches. Responding to noise complaints from city residents, on October 4, 2021, the city approved an ordinance placing new restrictions on the maximum decibel level at which businesses could play music that contains “obscene, profane[,] or vulgar words and lyrics.” Under the guidelines, from 7:01 a.m. to 10:59 p.m., such music cannot be played above 30 decibels, the equivalent of speaking in a whisper, and from 11 p.m. to 7 a.m., the music cannot top 50 decibels, as loud as a normal conversation. 

On Oct. 7, the ACLU-SC wrote a letter to the city council and mayor Marilyn Hatley urging the leaders to repeal the ordinance because it “criminalizes vast swaths of protected speech” in violation of the First Amendment. In response, city spokesperson Pat Dowling told WBTW that “everyone is entitled to their opinion.”

In the months following the ordinance’s passage, law enforcement warned and ticketed Sky Bar for violating the regulation multiple times. On more than one occasion, officers entered the bar, forced the DJ to stop playing music, and turned the lights on, causing Sky Bar to lose customers and revenue. One Sky Bar DJ decreased his working hours because it was difficult to obtain non-explicit versions of songs.

On July 5, 2022, the ACLU-SC filed a lawsuit on behalf of Moshoures seeking to suspend enforcement of the ordinance because it violates Free Speech. The lawsuit alleged that the ordinance criminalizes protected speech, promotes “discriminatory enforcement” through its vague wording, and constitutes an impermissible content-based restriction.

According to the suit, the city “criminalized substantial amounts of protected speech” by prohibiting music it deemed offensive.

“The Supreme Court has explained that ‘music is one of the oldest forms of human expression’ and has held that ‘the Constitution prohibits any … attempts to ‘censor musical compositions to serve the needs of the state,’” the ACLU-SC wrote. 

Further, the legal complaint argued that the ordinance’s vague wording could contribute to discriminatory or subjective enforcement. Words such as “crude, filthy, dirty, smutty or indecent” do not clarify the exact type of content the ordinance prohibits, it said.

“These vagueness concerns are particularly problematic because they place the task of determining whether conduct is criminal—versus merely unpopular—entirely within the discretion of law enforcement,” the ACLU-SC wrote.

In addition, it claimed that setting different limits for “decent” and “indecent” music amounts to an unconstitutional content-based restriction on speech. While the law limits “obscene, profane or vulgar” music to 30 decibels, other sounds can be played at up to 80 decibels during the same time of day.

City spokesperson Donald Graham told WMBF that “[i]t is city policy to not comment on any pending litigation.”

Outcome

North Myrtle Beach defends ordinance in court

On Aug. 4, the city filed a reply to the lawsuit, arguing that the policy was a “measured response” to the conflict between Sky Bar’s business operations and those who don’t want to hear its music, The Sun News reported. The city urged that instead of a ban, the ordinance “is a restriction on how loudly one can intrude upon one’s neighbors during certain hours of the day.”

“It does not prevent the playing of music or the enjoyment of it by those who elect to hear its content so long as it is kept at levels only they can understand,” the city argued.