The Freedom of Speech clause of the First Amendment was cited in declaring unconstitutional a Florida statute that made it unlawful for any person in a motor vehicle to produce sound from a soundmaking device (for example, a CD player) which is “plainly audible at a distance of 25 feet or more from the motor vehicle.” Fla. Stat. 316.3045(1)(a). The Statute was “unconstitutionally overbroad, but not unconstitutionally vague” because the statute exempts “motor vehicles used for business or political purposes, which in the normal course of conducting such business use soundmaking devices.” Since the Statute treats commercial and political speech more favorably than noncommercial speech the Statute is unconstitutionally overbroad. State of Florida v. Catalano, Case No. SC 11-1166 (Fla. S.Ct., Dec. 13, 2012) (available here). The Statute provided:
Operation of radios or other mechanical soundmaking devices or instruments in vehicles; exemptions.— (1) It is unlawful for 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. Fla. Stat. 316.3045(1)(a).
Additionally, the Statute exempted (a) law enforcement and emergency vehicles; and (b) “motor vehicles used for business or political purposes” from the “too loud at 25 feet” provision. Fla. Stat. 316.3045(1)(a). The Department of Highway Safety and Motor Vehicles was to promulgate rules defining “plainly audible” and establish standards.
Catalano argued that the “plainly audible” language is unconstitutionally vague on its face because whether a police officer can hear amplified sound beyond twenty-five feet is necessarily subject to each particular police officer’s auditory faculties, leading to arbitrary enforcement based on whether a police officer personally finds the amplified sound disturbing.
“Applying the rationale from Grayned and Broadrick, the ‘plainly audible’ standard provides persons of common intelligence and understanding adequate notice of the proscribed conduct: individuals operating or occupying a motor vehicle on a street or highway in Florida cannot amplify sound so that it is heard beyond twenty-five feet from the vehicle. Although it is true that each police officer may have different auditory sensitivities, the ‘plainly audible’ beyond twenty-five feet standard provides fair warning of the prohibited conduct and provides an objective guideline—distance—to prevent arbitrary and discriminatory enforcement so that basic policy matters are not delegated to policemen, judges, and juries for resolution on an ad hoc and subjective basis.” P. 9, citing Grayned v. City of Rockford, 408 U.S. 104, 110 (1972) and Broadrick v. Oklahoma, 413 U.S. 601, 608 (1973).
Although not unconstitutionally vague, the Statute is overbroad in that it favors one type of speech over another.
“Here, the State argues that Catalano … do[es] not have a constitutionally recognized right to play loud music, thus the statute is not subject to an overbreadth analysis. However, the right to play music, including amplified music, in public fora is protected under the First Amendment.” P. 13, citing Ward v. Rock Against Racism, 491 U.S. 781, 788-90 (1989).
“‘The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.’ Ward, 491 U.S. at 791. If the government’s purpose has no relation to the content of the speech, the statute will be deemed neutral even if the restriction affects some speakers or messages and not others. See id. Initially, it would appear that section 316.3045(1)(a) does not regulate expression based on the content of the message as it bans all amplified sound coming from within the interior of a motor vehicle that is ‘plainly audible’ beyond twenty-five feet from the source. In short, the statute proscribes excessive sound emanating from vehicles on public thoroughfares. Subsection (3), however, excepts ‘motor vehicles used for business or political purposes, which in the normal course of conducting such business use [sound-making] devices’ from this broad proscription.” Pp. 14 – 15.
Therefore, the Statute was not unconstitutionally vague because ordinary persons could understand the scope of the prohibited acts but was unconstitutionally overbroad because it exempted certain speech and thereby favoring one speech (political and business) over another (for example, playing loud rock music).
