The latest hotly contested issue on the Beach is about music. Or noise. Or both, depending on your perspective. The Ft. Myers Beach Town Council is currently considering a new noise ordinance that is controversial for its feared impact on the ability of Beach restaurants and bars to continue to host live music performances. On one side is a small, but quite vocal, contingent of residents who live close to the commercial area of Ft. Myers Beach. On the other side are local businesses and related interests. And at balance is the right of residents to the quiet enjoyment of their homesteads against the economic viability of Ft. Myers Beach.
But whether this proposed noise ordinance is bad for business is not the only problem it faces; although we typically think of the Constitutional right to free speech as a right to political expression, it also covers musical expression. A frequently litigated matter in federal courts all over the United States and here in Florida is whether a particular noise ordinance improperly impinges upon an individual’s right to free expression. A close look at the noise ordinance under consideration by our Town Council reveals a law that just may cross that line.
The First Amendment of the Constitution states that “Congress shall make no law . . . abridging the freedom of speech, or of the press . . . .” The Fourteenth Amendment then applies that protection to actions by a State and its political subdivisions, of which Ft. Myers Beach is one.
It is uncontested that local governments have the authority to regulate noise within its bounds, and they do so regularly. But they cannot do so indiscriminately. The stated purpose of this ordinance is to “protect, preserved, and promote” the welfare of residents and visitors from “excessive, loud and raucous noises . . . .” The currently proposed ordinance, scheduled for a second public hearing on June 15, offers two prongs for enforcement: first, under section 14-23(a) is an objective measurement of sound level from defined positions, depending on who made the original complaint; and second, under 14-23(b) is a more subjective assessment by the enforcement personnel on whether the sound is a “noise disturbance,” defined within the ordinance to be “one or a group of excessive, loud, harsh, raucous, harmonious or nonharmonious sounds or vibrations that unreasonably disturb, alarm, injure, harm or endanger the health or welfare of a reasonable person with normal sensitivities.” That’s a lot to unpack, and leaves a great deal of subjectivity to the enforcement personnel.
While residents and businesses debate the wisdom of this ordinance from a pure economic development and quality of life perspectives, another problem lurks for the ordinance: It simply may not be constitutional.
In the 1989 case Ward v. Rock Against Racism, SCOTUS held that “[m]usic, as a form of expression and communication, is protected under the First Amendment.” Further, there is a foundational concept that “the government may impose reasonable restrictions on the time, place, or manner of protected speech,” if those restrictions are (1) content neutral; (2) narrowly tailored to serve a significant governmental interest; and (3) leave open ample alternative channels of communication.
As an initial step, is the ordinance in question content neutral? While the first prong of the ordinance is an objective measurement of the noise and thus is ostensibly content neutral, the second prong relies on objective determinations of whether the sound is “harsh” or “raucous” or “excessive.” These terms at least imply that some loud sounds may be more welcome than others. For instance, would an outdoor philharmonic performance be more tolerated than an outdoor rock and roll show? Possibly, and thus the “content neutral” test for constitutionality is not a slam dunk for proponents of the ordinance.
But let’s assume the ordinance is content neutral. The critical evaluation is whether it is narrowly tailored to a “significant government interest”? This is where the real trouble lies and what could lead to costly litigation for the Town of Ft. Myers Beach if the Council continues down this path.
In Ward, the Court looked at this concept of narrow tailoring and asserted that “the requirement of narrow tailoring is satisfied so long as the … regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.” A municipality “may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.” A key factor in this analysis, then, is the government interest being protected. And that interest is clearly expressed in the proposed ordinance as a desire to protect residents from “excessive, loud and raucous noises.”
But how does that goal play out in the enforcement standard of the ordinance? Well, conceivably, a philharmonic orchestra would be deemed in violation simply because it exceeded a prescribed decibel level. An amplified version of a classic song like James Taylor’s “Fire and Rain” could also be in violation. The ordinance provides for violations of the statute without reference to the quality of the sound or music, but the stated goal of the ordinance is squarely aimed at the quality of the sound. Because a wide range of music could be deemed in violation despite meeting no reasonable concept of “raucous” music, this ordinance is in jeopardy.
Further, because of the low decibel limits proscribed by the ordinance, it essentially serves to prohibit all amplified music. And while proponents may argue that it does not serve to prohibit all music entirely (meaning unamplified music), that delineation is not sufficient to rescue the ordinance. Amplified music is a protected form of speech. Courts have also recognized that the “narrowly tailored” test “must be applied in a realistic manner which takes into account the nature and traditional uses” of the forum. Thus, a limitation on a business in the bustling areas around Times Square in Ft. Myers Beach should be less restrictive than a limitation on a source located within a quiet residential area. Because the ordinance does not provide different sound levels depending on the location of the source of the music, and it would essentially shut down all amplified music within the town boundaries, the ordinance is highly vulnerable
So what does this mean for the Town? If it continues down its current path, it could likely face legal action in the form of a temporary injunction against enforcement until these issues were fully litigated. A business owner or musical performer could easily argue imminent irreparable harm to win the temporary injunction, and as discussed above, there are strong arguments that the ordinance is, ultimately, unconstitutional as a prohibited restriction on our First Amendment right to free speech. Noise ordinances are a legitimate function of local governments, but the ordinance must be carefully crafted. This one fails that standard, and the Council should start over to craft an ordinance that is reasonable, enforceable, and narrowly tailored to its stated purpose. Otherwise it will may be spending valuable taxpayer resources on expensive and wasteful litigation.