Richard Catalano and Alexander Schermerhorn (“defendants”) were ticketed by law enforcement in separate incidents in Pinellas County for violating section 316.3045, Florida Statutes. The county court refused to hold the excessive sound statute to be unconstitutional, the defendants entered pleas of nolo contendere, and adjudication was withheld. Both appealed to the circuit court, which held the statute to be unconstitutional and ordered the county court to dismiss the citations. The state appealed to the Second District Court of Appeals. The Second DCA upheld the circuit court’s decision. As a side note, Mr. Catalano, a practicing attorney, apparently represented himself and the other defendant, challenging the old saying about attorneys who represent themselves at the same time that he challenged the statute.
The Supremes held that (1) the statute is not unconstitutionally vague, but (2) the statute is impermissibly overbroad. The court added that the business/politics exception from the statute could not be severed from the statute to save it, as it was clear from its inclusion that the legislature did not intend to restrict all forms of speech to the extent that non-business and non-political speech was to be regulated.
The Court explained that a statute regulating unprotected speech is overly broad if it bans or chills (legalese for dissuades) a substantial amount of protected speech in the process. And, because First Amendment rights are fundamental protections under the U.S. Constitution, restrictions First Amendment rights can only stand if they support a compelling, or very important, government interest and if they are narrowly tailored to impose no more restriction than is necessary to achieve the government goal. Such strict scrutiny is especially appropriate in cases such as this one, where the regulation on its face makes a distinction based on the content of the speech.
While the Court was willing to entertain, without accepting, the state’s argument that traffic safety was a sufficiently compelling interest to restrict First Amendment rights, the Court held that the regulation was not narrowly tailored to pursue this goal as it had an exception for business and political purposes. Additionally, allowing business speech to be exempt afforded commercial speech a greater protection than non-commercial speech, which is not contemplated by First Amendment caselaw. The Court concluded by refusing the sever the business/politics exception in the statute, noting that it was clear that the legislature did not intend to apply the restrictions on sound to business and political speech as well.
In other news, driving with headphones on is still illegal.