Thursday, December 13, 2012

Florida Supreme Court Strikes Down Ban On Cars With Loud Music

TALLAHASSEE, Florida -- "We like the cars... The cars that go boom" goes the lyrics by Le Tigre, and the Florida Supreme Supreme Court found that Florida drivers have a constitutional right to like the boom when it unanimously* struck down a Florida statute prohibiting drivers from blasting music from their vehicles.  


The case stems from two men, Richard Catalano and Alexander Schermerhorn, who were cited by law enforcement officers in separate incidents in Pinellas County, Florida, for violating the sound standards in Florida Statute section 316.3045.


Florida Statute section 316.3045 provides, in relevant part:

"any person operating or occupying a motor vehicle on a street or highway to operate or amplify the sound produced by a radio, tape player, or other mechanical soundmaking device or instrument from within the motor vehicle so that the sound is:

(a) Plainly audible at a distance of 25 feet or more from the motor vehicle; or

(b) Louder than necessary for the convenient hearing by persons inside the vehicle in areas adjoining churches, schools, or hospitals.


(2) The provisions of this section shall not apply to any law enforcement motor vehicle equipped with any communication device necessary in the performance of law enforcement duties or to any emergency vehicle equipped with any communication device necessary in the performance of any emergency procedures.

(3) The provisions of this section do not apply to motor vehicles used for business or political purposes, which in the normal course of conducting such business use soundmaking devices. The provisions of this subsection shall not be deemed to prevent local authorities, with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power, from regulating the time and manner in which such business may be operated.

(4) The provisions of this section do not apply to the noise made by a horn or other warning device required or permitted by s. 316.271. The Department of Highway Safety and Motor Vehicles shall promulgate rules defining “plainly audible” and establish standards regarding how sound should be measured by law enforcement personnel who enforce the provisions of this section."


The issues before the Florida Supreme Court was to determine whether: (a) the statutory “plainly audible” standard in section 316.3045(1)(a) is unconstitutionally vague and overbroad; and (b) whether the “business/political” exception in section 316.3045(3) is permissible, but even if not, whether the exception should be severed. 


Ultimately, the Court found that the statute was unconstitutionally overbroad and an impermissible content-based restriction due to the exemptions for commercial and  political speech, but banning personal music choices.


The State of Florida argued that Catalano and Schermerhorn do not have a constitutionally recognized right to play loud music, thus the statute is not subject to an overbreadth analysis.  


The Court found however, that "the right to play music, including amplified music, in public fora is protected under the First Amendment. See Ward v. Rock Against Racism, 491 U.S. 781, 788-90 (1989) (noting that regulation of amplifiedmusic in public park was protected by the First Amendment); Saia v. New York, 334 U.S. 558, 562 (1948) (“The police need not be given the power to deny a man the use of his radio in order to protect a neighbor against sleepless nights.”). This right, nevertheless, is subject to reasonable limitations on the time, place, and manner of the protected speech. Limitations are reasonable if they are “justified without reference to the content of the regulated speech, . . . narrowly tailored to serve a significant governmental interest, and . . . leave open ample alternative channels for communication of the information.” Ward, 491 U.S. at 791. If the time, place, and manner of the limitations are content based, a strict standard of scrutiny is applied. See, e.g., Simmons v. State, 944 So. 2d 317, 323 (Fla. 2006)."



*PARIENTE, LEWIS, and PERRY, JJ., concur.
 POLSTON, C.J. and CANADY, J., concur in result.
 QUINCE, J., concurs in result only.