Content-Based “Vulgar Language” Noise Limits Trigger Strict Scrutiny and Are Unconstitutional Unless Confined to Miller Obscenity

Case: Michael Moshoures v. City of North Myrtle Beach, No. 24-1293 (4th Cir.)
Date: March 13, 2025 (amended)
Author: Heytens, J. (Diaz, C.J., Richardson, J., joined)

1. Introduction

North Myrtle Beach amended its noise ordinance to impose especially low decibel caps when sound equipment broadcasts “obscene, profane or vulgar language” from commercial property and other locations. Michael Moshoures, owner of “Sky Bar,” sued the City and its public-safety chief (official capacity), alleging First Amendment violations after warnings for ordinance violations.

The appeal narrowed to a single question: whether the ordinance’s restriction on broadcasting “vulgar” language is constitutional. The district court declined to enjoin the “vulgar” provision after construing it as merely duplicating constitutionally unprotected “obscene” speech (as defined by Miller v. California).

The Fourth Circuit reversed in part, holding that the “vulgar” provision, properly construed under South Carolina interpretive rules, reaches protected speech and fails strict scrutiny as a content-based regulation.

2. Summary of the Opinion

• Construction first: The court independently construed the ordinance and rejected the district court’s narrowing interpretation that “vulgar” was coextensive with (or a subset of) “obscene.”
• Protected speech reached: The ordinance’s “vulgar” definition (“explicit and offensive reference to sex, male genitalia, female genitalia or bodily functions”) omits key Miller limits (e.g., “taken as a whole,” “serious value”) and thus reaches non-obscene, protected speech.
• Strict scrutiny applies and is not met: The provision is facially content-based and not narrowly tailored to compelling interests; it is overinclusive (burdens consenting adults) and underinclusive (targets only certain content rather than noise generally).
• Disposition: Reversed in part and remanded for further proceedings consistent with the opinion.

3. Analysis

3.1 Precedents Cited (and How They Shape the Holding)

A. Who decides state-law meaning; why the appeal matters

• Grimmett v. Freeman: Reiterated that state courts have “the last word” on state law; also supplied First Amendment “textbook content discrimination” language later used to characterize the ordinance.
• Ashcroft v. Al-Kidd & Salve Regina Coll. v. Russell: Established that a federal district court’s state-law construction has no binding effect (no stare decisis) and that appellate courts review state-law meaning without deference. This undercut the City’s implicit “no harm, no foul” theory that the district court’s narrowing reading effectively mooted any risk.
• Virginia v. Hicks: Provided the “First Amendment chill” framework—explaining why an unenjoined “vulgar” provision can deter speech even if an official might later be proven wrong.

B. Obscenity doctrine and the non-equivalence of “vulgar” and “obscene”

• Miller v. California: Anchored the constitutional definition of obscenity (unprotected speech). The court accepted that the ordinance’s “obscene” definition mirrored Miller, but used that very alignment to highlight that “vulgar” must do distinct work.
• Cohen v. California: Supplied two key points: (1) obscene expression must be “in some significant way, erotic,” and (2) offensiveness alone is not enough to suppress speech (“one man’s vulgarity is another’s lyric”). This supported the court’s conclusion that “bodily functions” references may be vulgar yet not obscene.
• Roth v. United States: Reinforced that “sex and obscenity are not synonymous,” rebutting the City’s attempt to cabin “bodily functions” to “sexual bodily functions.”
• Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy: Offered modern Supreme Court confirmation that vulgarity is not obscenity “as this Court has understood that term.”
• Luke Records, Inc. v. Navarro: Used as an example showing that explicit sexual references can possess “serious artistic value” and therefore remain protected—demonstrating the ordinance’s “vulgar” definition sweeps beyond Miller.

C. Statutory interpretation constraints (and limits of constitutional avoidance)

• State v. Sweat: Supplied South Carolina’s canon against surplusage and the plain-meaning rule. These canons drove the court’s refusal to read “vulgar” as redundant of “obscene.”
• Lawson v. Suwannee Fruit & S.S. Co. (and Sutherland Statutory Construction): Confirmed that statutory definitions control; supported the court’s focus on the ordinance’s distinct definitions of “obscene” and “vulgar.”
• Kirven v. Central States Health & Life Ins.: Defined constitutional avoidance as a “default rule” that cannot override the statute’s express terms—authorizing the court to acknowledge constitutional problems rather than “repair” the text by aggressive narrowing.
• FCC v. Pacifica Found.: Illustrated the danger of collapsing disjunctive statutory terms into one concept; the court quoted Pacifica in rejecting a reading that would convert “obscene, profane, or vulgar” into effectively just “obscene.”
• Southern Mut. Church Ins. Co. v. South Carolina Windstorm & Hail Underwriting Ass'n: Invoked for the noscitur-a-sociis principle, but the court found it insufficient to rewrite “bodily functions” as “sexual bodily functions.”
• Flores-Figueroa v. United States: Mentioned by analogy to show why certain grammatical inferences (how modifiers travel) do not fit the ordinance’s structure.
• Toghill v. Clarke: Emphasized federal courts cannot adopt a narrowing construction of state law unless it is “reasonable and readily apparent,” reinforcing the court’s restraint in the face of constitutional pressure.
• City of Lakewood v. Plain Dealer Publ'g Co.: Noted that federal plaintiffs need not await a state-court narrowing construction; certification was possible but not requested.

D. Deciding the constitutional issue on appeal

• Nautilus, Inc. v. Biosig Instruments, Inc.: Recognized the usual practice of remanding issues not addressed below; the court departed from that norm.
• B.P.J. v. West Va. State Bd. of Educ.: Distinguished issues reviewed for abuse of discretion; here, constitutionality on summary judgment would be reviewed de novo, supporting appellate resolution.
• Reed v. Town of Gilbert: Served both as a substantive First Amendment framework and as an example of an appellate court undertaking a fresh First Amendment analysis when the lower court used a rejected legal theory.

E. Content discrimination, overbreadth posture, and strict scrutiny

• Reed v. Town of Gilbert: Core authority. A law facially targeting speech by subject matter/communicative content is presumptively unconstitutional and must satisfy strict scrutiny; benign motives do not “neutralize” a facially content-based rule.
• Lucero v. Early: Fourth Circuit reinforcement that content-neutral justifications do not transform facially content-based restrictions.
• United States v. Stevens: Clarified that only limited categories of speech fall outside First Amendment protection and framed “plainly legitimate sweep” in overbreadth analysis; the court used it to show the “vulgar” provision’s independent sweep is unconstitutional.
• Lewis v. City of New Orleans: Stated directly that vulgar or offensive (but not obscene) speech is protected—critical to rejecting any “vulgarity exception.”
• City of Houston v. Hill: Cited for “substantial overbreadth,” but the court held the City’s reliance on it did not rescue a content-based restriction whose only independent function was to reach protected speech.
• Brown v. Entertainment Merchants Ass'n: Provided the underinclusiveness/overinclusiveness lens and skepticism of government “helping parents” by restricting protected speech for everyone.
• Reno v. ACLU & Butler v. Michigan: Rejected “what is fit for children” as a governing rule for public discourse; the court applied these to the City’s child-protection rationale.
• Ward v. Rock Against Racism: Confirmed that content-neutral time, place, and manner limits—like amplified-sound controls—are available tools, highlighting why a content-based “vulgarity” trigger is unnecessary and not narrowly tailored.
• Kovacs v. Cooper (and Rosen v. Port of Portland): Used to illustrate the classic content-neutral sound-amplification regulation model; by comparison, North Myrtle Beach’s ordinance singled out content.
• FCC v. Pacifica Found.: Reinforced that offensiveness alone is insufficient to suppress speech—supporting the court’s closing admonition.

3.2 Legal Reasoning (How the Court Got There)

1. Step 1 — Fix the ordinance’s meaning before judging constitutionality. The court treated statutory construction as antecedent (United States v. Stevens) and reviewed the ordinance de novo (Salve Regina Coll. v. Russell).
2. Step 2 — Apply South Carolina interpretive canons. Using the canon against surplusage and plain meaning (State v. Sweat), the court found it untenable to construe “vulgar” as duplicative of “obscene,” especially given distinct definitions and the absence of Miller safeguards in the “vulgar” definition.
3. Step 3 — Reject “avoidance-by-rewrite.” Constitutional avoidance cannot override the enacted text (Kirven v. Central States Health & Life Ins.), and federal courts cannot impose an aggressive narrowing construction absent a readily apparent reading (Toghill v. Clarke).
4. Step 4 — Identify facial content discrimination. The provision changes legal consequences based on the type of “language” broadcast, which is “textbook content discrimination” (Grimmett v. Freeman) and triggers strict scrutiny under Reed v. Town of Gilbert.
5. Step 5 — Confirm the provision reaches protected speech. Because “vulgar” extends beyond Miller obscenity, it captures protected vulgarity (Lewis v. City of New Orleans; Cohen v. California).
6. Step 6 — Hold strict scrutiny unsatisfied. Even assuming compelling interests (children, unwilling listeners, neighborhood character), the ordinance is not narrowly tailored: it is overinclusive (burdens consenting adults) and underinclusive (targets only certain content rather than addressing noise through content-neutral means) (Brown v. Entertainment Merchants Ass'n; Reed; Ward).

3.3 Impact (Doctrinal and Practical)

• Signals heightened risk for “content-triggered” nuisance controls. Municipalities often attempt to address community complaints by targeting “offensive” messages rather than the externality (volume, time, location). This decision underscores that content triggers—“vulgar,” “profane,” “indecent,” etc.—invite strict scrutiny even when packaged as a noise ordinance.
• Encourages content-neutral drafting. The opinion highlights that governments have “ample tools” via content-neutral time, place, and manner restrictions (Ward v. Rock Against Racism; Kovacs v. Cooper), and via categorical exclusions like true obscenity (Miller v. California)—but not via selective suppression of protected vulgarity.
• Limits federal-court “salvage” of state/local enactments. By tying statutory interpretation to state canons and refusing to rewrite the ordinance, the decision pressures local lawmakers to amend text directly rather than rely on judicial narrowing as a litigation strategy.
• Litigation posture lesson: The court’s discussion of chilling effect and nonbinding district-court interpretations warns municipalities that “we will enforce it as we promise” is not a substitute for an injunction or for narrowing language enacted with legal force.

4. Complex Concepts Simplified

• Content-based regulation: A rule that depends on what the speech says (e.g., “vulgar” words) rather than how/when/where it is delivered. Under Reed, facially content-based laws are presumptively unconstitutional.
• Strict scrutiny: The toughest constitutional test. The government must prove a compelling interest and that the law is narrowly tailored—meaning it uses the least speech-restrictive approach among realistic alternatives.
• Obscenity (constitutional): A narrow category of unprotected speech defined by Miller v. California, including prurient appeal, patently offensive depiction of defined sexual conduct, and lack of serious value “taken as a whole.”
• Overinclusive vs. underinclusive: Overinclusive laws restrict more speech than necessary (e.g., silencing adults who consent). Underinclusive laws pursue a goal selectively (e.g., claiming to target “noise,” but only when the message is “vulgar”).
• Canon against surplusage: Courts try to give effect to every word; reading “vulgar” to mean the same as “obscene” makes “vulgar” meaningless in the text.
• Constitutional avoidance: Courts prefer constitutional interpretations when plausible, but (as Kirven explains) they cannot ignore clear statutory language to “save” a law.
• Chilling effect: People self-censor to avoid punishment when a law is broad or unclear; the First Amendment treats that deterrence itself as a serious harm (Virginia v. Hicks).
• Time, place, and manner restrictions: Content-neutral limits on when/where/how speech happens (e.g., decibel limits for all amplified music) that can be constitutional if evenhanded and appropriately tailored (Ward).

5. Conclusion

The Fourth Circuit’s decision turns on a disciplined sequence: construe the ordinance as written (using state-law canons), recognize that “vulgar” extends beyond Miller obscenity, and then apply Reed’s strict scrutiny to a facially content-based sound restriction. Because North Myrtle Beach singled out a subset of protected speech for uniquely harsh volume limits—despite readily available content-neutral tools—the “vulgar language” provision cannot stand.

The central takeaway is regulatory: governments may regulate noise, and they may ban obscenity, but they generally may not regulate protected speech more strictly simply because it is vulgar or offensive.