An all too familiar scenario: you’re stopped at a red light when you begin to feel the approaching thuds of a stereo system being used passed its capacity. As the thuds grow louder, you recognize the rhythmic beats of music but cannot decipher which vehicle around you emits such loud sounds. Until you see, from your rearview mirror, a vehicle whose hood and windows rattle on beat to the distorted attempt of music. Finally, the traffic light turns green, and you drive away from the noisy vehicle, rubbing your ears and wondering why the music was so loud.

Evidently, lawmakers in Florida were equally, or even more perturbed, by these pesky loud vehicles.  In July 2022, Florida passed a law that allows consequences for drivers listening to music too loudly in their cars.[i] Florida Statute § 316.3045 states that any sound emanating from a vehicle, which is “plainly audible” from twenty-five feet or more away, can result in a fine of up to $114.[ii] Additionally, the same “plainly audible” sound heard near a church, school, hospital, or residential area can be labeled disorderly conduct, carrying with it a fine of up to $500 or even sixty-days in jail.[iii]

Aiming to control and deter behaviors that Florida lawmakers claim negatively impact traffic safety, this newly enacted law is not entirely novel.[iv] In fact, the Florida Supreme Court overturned an almost identical law in 2012[v]. The 2012 statute targeted the same “plainly audible” sounds but carved out an exception for “political or business advertisements.”  In the case that overturned the statute, State v. Catalano, two men previously ticketed under the law challenged their citations, referencing both the law’s vague and overbreadth language. The court found that the phrase “plainly audible” is not vague, despite the argument that a law enforcement officer’s ability to hear music at any distance is subjective.[vi] However, in examining the issue of overbreadth, Florida’s highest court found that the law violated the United States Constitutional right to Freedom of Expression. In excluding political speech and ice cream trucks from the noise constraint, lawmakers created a content-based restriction, triggering a strict scrutiny analysis. Under such a standard of review, the court found that the law was not narrowly tailored to achieve the governmental interest of upholding traffic safety and overturned the law as being a violation of the First Amendment.[vii]

The newly enacted law in 2022 paid attention to the opinion published a decade prior and removed the business/political speech exception. Those in support of the law explain that removing such an exception transforms the law into a content-neutral restriction, needing only to survive intermediate scrutiny to be declared valid, a much lower standard of review than strict scrutiny.

However, despite the removal of the political/business exception, Florida’s new law contains three major issues: 1) being content based when applied practically; 2) the pretextual use of the law; and 3) the subjectiveness of the “plainly audible” requirement.

Even though lawmakers feel confident that removing the political/business exception makes the law content-neutral, this may not be true when the practical use of the law is further examined. The language of the law prohibits a person from operating or amplifying

the sound produced by a radio, tape player, compact disc player, portable music or video player, cellular telephone, tablet computer, laptop computer, stereo, television, musical instrument, or other mechanical or electronic soundmaking device or instrument…[viii]

Although facially applicable to any sound a vehicle can make, the sound most likely capable of producing the deep bass tones which would be “plainly audible” from twenty-five feet or more—is music. Although possible, it is unlikely for an individual to blast NPR or a podcast loud enough to alert law enforcement. But the deep bass of a drum solo or the screech of a guitar riff is certainly loud enough for an officer to claim it was heard from more than twenty-five feet away. Logically speaking, this law can disparately impact certain music genres, such as those that rely on heavier, rhythmic beats.

As a result of the incidental meaning of the new law’s language, referring to its restriction as “content-neutral” seems incorrect. Interpreted in a sensical framework, this law aims to target loud music, an art form that the Freedom of Expression aims strongly to protect.  And restricting only the volume of music, as opposed to other sounds, narrows this law to a content-based prohibition once again, triggering strict scrutiny, a standard of review that the law previously could not survive.

The First Amendment is not the only constitutional amendment impacted by this law. Under this statute, law enforcement can pull over and ticket an individual whose vehicle emanates loud sounds heard from twenty-five feet away. In the process of issuing that citation, an officer could potentially find probable cause to believe contraband exists in the vehicle and begin a search. Exercising the automobile exception to the warrant requirement under the Fourth Amendment, this law provides a pretextual reason for an officer merely suspicious of a car to begin a traffic stop, despite the absence of any other moving traffic violation. In a country where police disproportionately search Black and Hispanic Americans during traffic stops, this law can potentially exacerbate an already racially flawed criminal justice system.

The final concern is the subjective nature of the language of the statute. Originally challenged in Catalano, the phrase “plainly audible” carries an aspect of vagueness that must be analyzed. Although Catalano opined that “statutes do not have to set determinate standards or provide mathematical certainty” to withstand constitutional scrutiny, the opinion focused more on the meaning of plainly audible and less on how the phrase will be applied.[ix] The opinion based its foundation on dismissing the vagueness challenge on the premise that a reasonable person of ordinary intelligence can understand what the parameter means but failed to expand on both the physiological implications and the pretextual concern mentioned above.

As discussed realistically, not all law enforcement officers have the same hearing abilities. While some officers can hear quieter sounds, others need sounds to be slightly louder to be easily heard. This means that an officer with exceptional hearing may decide, with ordinary intelligence, that music emanating from a nearby vehicle is “plainly audible,” even if that sound is not intelligible to anyone else. Further, the law fails to indicate which direction the twenty-five feet parameter applies. Suppose a law enforcement officer is waiting at the same traffic light as a vehicle, only a few lanes over, both with their windows down, does that have the same implications of “plainly audible” as an officer driving twenty-five feet behind a vehicle whose bass is clearly heard over the normal sounds of traffic.

And finally, as mentioned before, the subjective nature of the law only ignites its pretextual possibilities. Under this new law, an officer can initiate a traffic stop based on a belief that music is plainly audible from twenty-five feet away, even if the officer only heard the music briefly while driving by or near the car. Subjectivity becomes even murkier when faced with an officer determined to initiate a search who hears any level of sound emanating from an already monitored vehicle. Since sound travels, it’s not unreasonable to think that an officer may believe he is still hearing the remnants of an overly loud stereo system and base his predetermined traffic stop on that fact.

Only illustrating three main issues, it is evident that this new law can disproportionately impact certain Florida residents, indicating an inability for the law to be applied equally and fairly. There are millions of cars driving throughout the sixty-seven counties in Florida. To expect law enforcement to equally apply an already subjective law fairly throughout the entire state foreshadows the challenge of this law in the future.[x]

Florida lawmakers reference the inability to hear emergency vehicles over loud sounds as the main reason this law is necessary is for traffic safety.[xi] While most will not argue the importance of emergency vehicles being able to travel safely throughout busy streets amidst a crisis, the detriment of this newly enacted law appears to outweigh its benefits heavily. Considering the possible unconstitutionality of the law, coupled with its strong ability to be applied discriminatorily, it will continue to be heavily discussed and debated amongst Florida residents until the argument finds itself back in district court.

[i] Fla. Stat. Ann. § 316.3045 (Westlaw).

[ii] Id.

[iii] Don Pumphrey, Jr., What You Need to Know About Florida’s New Loud Music Law, Pumphrey Law (Jul. 7, 2022), https://www.pumphreylawfirm.com/blog/what-you-need-to-know-about-floridas-new-loud-music-law/.

[iv] Jacqueline Quynh, Florida drivers could get ticketed for playing music too loud starting Friday, Wink (June 30, 2022, 6:40 AM), https://www.winknews.com/2022/06/30/florida-drivers-could-get-ticketed-for-playing-music-too-loud-starting-friday/.

[v] State v. Catalano, 104 So. 3d 1069, 1076 (Fla. 2012).

[vi] Catalano, 104 So. 3d at 1076.

[vii] Ihosvani Rodriguez, Crank up the Bass, the Florida Supreme Court has your Back, Sun Sentinel (Dec. 14, 2012, 12:00 AM), https://www.sun-sentinel.com/news/fl-xpm-2012-12-14-fl-loud-car-radio-supreme-cour-20121214-story.html.

[viii] § 316.3045 (Westlaw).

[ix] Catalano, 104 So. 3d at 1076.

[x] See Cotterell, supra note vi.

[xi] See Pumphrey, supra note iii.