NORTH MYRTLE BEACH, S.C. (WBTW) — The American Civil Liberties Union filed a lawsuit on behalf of Sky Bar against the city of North Myrtle Beach and two city leaders in a dispute over the city’s noise ordinance.

The federal lawsuit filed on behalf of Sky Bar claims the city’s noise ordinance is unconstitutional and violates free speech. It names the city, Mayor Marilyn Hatley and Tommy Dennis, the head of the city’s public safety department.

The lawsuit hopes to stop enforcement of the city’s new noise ordinance, which puts restrictions on “obscene, vulgar and/or profane lyrics.”

Sky Bar was ticketed multiple times under the city’s previous ordinance and has been warned by law enforcement under the new ordinance, according to the lawsuit. The lawsuit claims that law enforcement has entered the bar, forced the DJ to stop playing the music and subsequently caused the bar to lose customers.

The lawsuit claims customers at Sky Bar expect to hear rap, hip-hop and top 40 music, which often contains profanity. The lawsuit mentions one DJ that has lowered the frequency he is willing to work at Sky Bar due to the difficulties the ordinance presents and that it’s difficult to obtain “clean” versions of songs.

The ordinance prohibits any music with “obscene, vulgar, or profane” lyrics from being played louder than 30 decibels, according to the lawsuit. The ordinance was passed in October 2021 in response to complaints from residents that bars were playing “profanity-laced music in a way that was clearly audible from the street and sidewalk.”

“The City of North Myrtle Beach has made it a crime to play ‘crude,’ ‘smutty,’ or ‘indecent’ music at a volume barely perceptible to the human ear,” the lawsuit reads. “In so doing, the City has trampled on the firmly rooted freedoms of speech and expression preserved by our federal constitution.”

The lawsuit claims that while “profane” music is restricted to 30 decibels, other sounds can be up to 80 decibels during the same time of day. That content-based restriction, the lawsuit claims, is unconstitutional because it applies differently to different types of speech.

“The First Amendment protects free speech, including musical expression,” Meredith McPhail with the ACLU said in a statement. “Under our Constitution, the government can’t regulate protected speech just because they don’t like it.”

According to the lawsuit, while the Supreme Court has previously ruled that “obscene” content is unprotected speech, in a separate case, it ruled that music by itself can’t be obscene.

The lawsuit argues that the city’s ordinance criminalizes any speech that a passerby may find offensive, and cited several Supreme Court cases stating offensive speech is protected by the First Amendment.

The ACLU also claims the ordinance can be enforced discriminately because it’s vague. The lawsuit claims the ordinance defines “profane” in other words that don’t clarify the type of content banned by the ordinance, such as “crude, filthy, dirty, smutty, or indecent.”

“These vagueness concerns are particularly problematic because they place the task of determining whether conduct is criminal — versus merely unpopular — entirely within the discretion of law enforcement,” according to the lawsuit.

The lawsuit claims that the risk for discriminatory enforcement is higher due to statistics from the South Carolina Department of Public Safety that show Black individuals make up about 1.5% of the city’s population but account for 22% of the police department’s uncited traffic stops.

The lawsuit was filed in the United States District Court for the District of South Carolina in Florence.

News13 reached out to the city of North Myrtle Beach for comment. City spokesperson Donald Graham said the city has yet to be served with the lawsuit, but it is city policy not to respond to pending litigation.