4th Circuit: Loud ‘vulgar’ music limits violate First Amendment

Where the district court declined to enjoin a portion of a South Carolina statute making it a crime to broadcast “vulgar” language from a commercial property above certain volumes, because it viewed it as only restricting speech that is obscene as a constitutional matter and thus could be prohibited entirely, it erred. The words obscene and vulgar are both defined in the ordinance and those definitions are materially different.

Background

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 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.

Analysis

The district court concluded — and the parties do not dispute — that the ordinance’s definition of obscene “directly mirrors the Supreme Court’s definition of obscene material” for constitutional purposes in Miller v. California, 413 U.S. 15 (1973). That conclusion raises an immediate follow-up question: What does the ordinance’s inclusion of the words “or vulgar” do?

South Carolina courts follow the canon against surplusage, which says “[a] statute should be so construed that no word, clause, sentence, provision or part shall be rendered surplusage, or superfluous.” The district court’s interpretation of “vulgar” violates this principle by reading an ordinance that restricts X, Y and Z (“obscene, profane, or vulgar language”) as meaning X, Y and X (or at least X, Y and some subset of X). But the canon against surplusage favors a construction that leaves both obscene and vulgar “with some independent operation.”

South Carolina also follows the plain-meaning rule under which courts “should give words their plain and ordinary meaning without resort to subtle or forced construction to limit or expand the statute’s operation.” As the Supreme Court also has recognized, the plain meaning of vulgar is different — and broader — than the constitutional meaning of obscene. More importantly, the words obscene and vulgar are defined in the ordinance, and those definitions are materially different.

To conclude the ordinance’s use of vulgar captures only language that is constitutionally obscene, this court would first need to ignore the fact that this ordinance is “written in the disjunctive” and restricts both obscene and vulgar speech. “[W]e think it unlikely” that South Carolina’s highest court “would read” the ordinance the way the district court did. This court thus concludes the vulgar-language provision reaches at least some speech that is not obscene in a constitutional sense.

Although First Amendment doctrine can be intricate, one of its most basic rules is that “[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.” 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. The vulgar-language provision is facially content-based, and the defendants’ proffered content-neutral justifications do nothing to change that fact.

Second, the vulgar-language provision reaches at least some “constitutionally protected” speech. 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.”

The defendants insist that even if the vulgar-language provision reaches some non-obscene speech, it still does not trigger strict scrutiny because it is not “substantially overbroad.” Whatever the merits of that argument generally, it does not help the defendants here. Because the obscene-language provision also exists, the only independent function of the vulgar-language provision is to criminalize speech that is not obscene and thus cannot be prohibited.

Third, the vulgar-language provision cannot survive strict scrutiny because it is not “narrowly tailored to serve” the interests the defendants identify here. The judgment is reversed in part, and the case is remanded for further proceedings consistent with this opinion.

So ordered.

Moshoures v. City of North Myrtle Beach, Case No. 24-1293, March 11, 2025. 4th Cir. (Heytens), from DSC at Florence (Dawson III). Meredith Dyer McPhail for Appellant. Marcus Angelo Manos for Appellees. 17 pp.