NORTH MYRTLE BEACH – When North Myrtle Beach officials were considering an ordinance in fall 2021 that would set volume limits on music based on lyrical content, the ACLU of South Carolina sent a letter warning them that they were about to violate the First Amendment rights of South Carolinians.
They didn’t listen. City Council passed an ordinance prohibiting “profane, vulgar, and obscene music” played during the daytime louder than 30 decibels — the volume of a whisper. That was an unconstitutional content-based speech restriction. So we took them to court.
Three-and-a-half years later, the U.S. Court of Appeals for the Fourth Circuit has sent a resounding message in a unanimous opinion in our long-running case Moshoures v. North Myrtle Beach: The bulk of that ordinance was unconstitutional.
“Now more than ever, it is critical to protect our First Amendment freedoms,” said ACLU of South Carolina Staff Attorney Meredith McPhail. “As we face increasing censorship and authoritarianism, this ruling reinforces the foundational American principle that the government can't use the threat of jail to silence speech that it doesn't like. That's important not only for residents of North Myrtle Beach but for all South Carolinians.”
The U.S. Constitution sets a high bar for governments that want to impose content-based speech restrictions. This week’s ruling sends a clear message that North Myrtle Beach’s noise ordinance does not clear that bar.
City officials can’t say they weren’t warned. In a letter to city officials on October 7, 2021, ACLU of South Carolina Legal Director Allen Chaney explained that the city “has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” We also explained that the ordinance’s use of vague terms like “smutty” and “crude” placed too much discretion in the hands of law enforcement to decide the difference between legal and illegal music.
On March 13, 2024, a federal judge ruled that the ordinance's volume restriction on "profane" music is unconstitutionally vague and can no longer be enforced. The ACLU-SC appealed to challenge the volume restriction on "vulgar" music, and on March 11, 2025, the U.S. Court of Appeals for the Fourth Circuit ruled that part of the ordinance is also unconstitutional. To quote from the appeals court's unanimous decision:
“Speech that is not protected by the First Amendment may be prohibited outright — including obscenity, defamation, incitement, and ‘speech integral to criminal conduct’ … What the city may not do is single out a subset of constitutionally protected speech for special disfavored treatment in public spaces because some (or even most) citizens would prefer not to hear it.”
“Obscene” speech remains outside the protection of the First Amendment, as established by long-standing court precedent. Under the 1973 Supreme Court case Miller v. California, a piece of art cannot be considered obscene unless it passes a three-prong test, including proof that it “lacks serious literary, artistic, political, or scientific value.”
To illustrate the high bar for proving obscenity, Judge Toby Heytens referenced the famous obscenity case Luke Records v. Navarro in the March 11 opinion:
“Older readers may be familiar with the Miami-based hip hop group 2 Live Crew, whose 1989 album As Nasty as They Wanna Be generated numerous threats of obscenity protections … Any person who hears nearly any song on that album would likely agree that it “mak[es] explicit and offensive reference to sex, male genitalia, female genitalia or bodily functions” and thus falls squarely within the heartland of how this ordinance defines vulgar. (The reader is welcome to take our word for it or use the magic of the internet to confirm or remind.) Yet that same album was deemed not obscene in a constitutional sense because it had not been shown to lack “serious artistic value” and was thus constitutionally protected.”
Throughout the course of this long-running legal case, judges and attorneys made a wide range of pop culture references. During oral arguments in the Fourth Circuit on October 31, 2024, a judge mentioned Cardi B and Megan Thee Stallion as examples of artists with “transparently vulgar” lyrics but whose music is not legally obscene. In contrast, the judge said:
“I can blast Vanessa Carlton or Miley Cyrus or Jimmy Buffett or Bob Marley as loud as I want to — or Metallica as loud as I want to — and that doesn’t violate this ordinance. But if I want to blast a whole bunch of things that are played on pop radio and certainly on Sirius and Spotify, I can’t.”
To quote Staff Attorney Meredith McPhail during those oral arguments, “The crux of the issue is chill.” Overly broad speech restrictions produce a chilling effect, leaving private citizens and business owners wondering whether a song they play on a sound system will offend the sensibilities of local speech police.
Just in time for Spring Break, the chill is gone.
To celebrate this First Amendment victory, we've compiled a playlist of songs and artists that were mentioned during the course of the lawsuit. You can check it out on Spotify or YouTube.
