A federal judge Tuesday backed a waterfront restaurant in a First Amendment fight with the city of St. Pete Beach about restrictions on musical instruments and music amplification in an outdoor dining area.
U.S. District Judge Kathryn Kimball Mizelle issued a preliminary injunction to block the city from enforcing restrictions that she said generally allowed the restaurant Red, White & Booze to offer “only unamplified acoustic string instruments, except during a few hours on Saturdays and Sundays.” The restrictions included a ban on bass instruments and drums.
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“The First Amendment protects the instrumental part of music, regardless of whether the piece includes lyrics,” Mizelle wrote in the 26-page decision. “To regulate the kinds of instrumental sounds that compose a musical work or performance is to regulate music based on its content.”
She added that “perhaps more fundamentally, instrumental music is expressive in its own right. It can lift up or cast down the spirit, raise the mind to heaven or distract with terrestrial matters, and stir the human soul to heroic or base deeds, all of which prove instrumental music’s power to communicate.”
The ruling said Charles and Helen Collom acquired the restaurant in 2022 and planned to have an outdoor dining area with live music. The city required them to get a permit to have such music.
The permit included time limits and conditions such as largely requiring music to be played with acoustic string instruments, Mizelle’s decision said. Amplified outdoor music could be played with string instruments only for limited periods on Saturday and Sunday afternoons. The restrictions also limited decibel limits.
The restaurant operators filed a lawsuit alleging First Amendment violations. Mizelle wrote that “there is no allegation here that any impermissible purpose motivated the city. Based on the record that the parties submitted, noise reduction, particularly near residential areas, seems to be the goal.”
But in approving the preliminary injunction, she focused primarily on the restrictions on musical instruments.
“To sum up, a statute or rule that regulates how musical sounds may be arranged, or what sounds may be used, regulates music based on its content,” she wrote. “That includes regulation of instruments but does not include absolute limits on volume.”
While the injunction barred enforcement of restrictions on instruments and amplification, it did not affect time restrictions on outdoor music or decibel limits. Mizelle wrote that the “continued validity of the permit’s restrictions on absolute noise levels abates any concern about disturbances related to loud music.”
