Docket No. 86453–Agenda 17–September 1999.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. 

								RONNIE E. JONES, JR., Appellee.

Opinion filed November 18, 1999.

	JUSTICE BILANDIC delivered the opinion of the court:

	The defendant, Ronnie E. Jones, Jr., was convicted under a

statute that restricts the volume at which a car stereo system may

be played on a public street, but exempts vehicles engaged in

advertising from this restriction. The issue presented in this appeal

is whether this statute is consistent with the first amendment to the

United States Constitution. We hold that the statute is a content-

based restriction on free expression which violates the first

amendment.

FACTS

	In the early morning hours of October 17, 1996, the defendant

was operating his automobile on a public highway. Sergeant Barry

Thomas of the Kankakee County sheriff’s police stopped the

defendant because of the excessive noise emitting from the

defendant’s car radio. The defendant refused to comply with

Officer Thomas’ request to see the defendant’s driver’s license and

insurance card. The officer reached through the defendant’s car

window to unlock the defendant’s door. When a backup patrol car

arrived, the defendant accelerated suddenly and drove off with

Sergeant Thomas’ arm still inside the car. Sergeant Thomas

continued to hang on to the car as the defendant traveled 11⁄2 miles,

and reached speeds in excess of 70 miles per hour, before finally

coming to a stop. Sergeant Thomas sustained bruises on his arm.

	The defendant was charged in the circuit court of Kankakee

County with aggravated battery of a police officer. The defendant

was also charged with citations for various traffic offenses,

including illegal operation of a sound amplification system (625

ILCS 5/12–611 (West 1996)). Before trial, the defendant filed a

motion to dismiss the illegal sound amplification charge on the

ground that it was unconstitutional. The circuit court denied the

motion to dismiss.

	Following a jury trial, the defendant was convicted of all

charges. The defendant was sentenced to five years’ incarceration

for aggravated battery and was assessed court costs on all other

convictions.

	The defendant appealed to the appellate court, challenging his

conviction for illegal sound amplification on the ground that the

statute was unconstitutional, and challenging the sentences

imposed on the other convictions. The appellate court, with one

justice dissenting, reversed the defendant’s conviction for illegal

sound amplification. 299 Ill. App. 3d 739. The appellate court

majority held that the sound amplification statute violated the first

amendment by regulating speech on the basis of content without a

compelling state interest. The appellate court rejected the

defendant’s remaining contentions.

	We granted the State’s petition for leave to appeal as a matter

of right (134 Ill. 2d R. 317) from the judgment of the appellate

court holding the sound amplification statute unconstitutional. Only

the defendant’s conviction for illegal sound amplification is before

this court. We now affirm the appellate court.

ANALYSIS

	We are asked to consider the constitutionality of section

12–611 of the Illinois Vehicle Code (625 ILCS 5/12–611 (West

1996)) (hereinafter, the sound amplification statute). The sound

amplification statute provides, in its entirety, as follows:

			“No driver of any motor vehicle within this State shall

operate or permit operation of any sound amplification

system which can be heard outside the vehicle from 75 or

more feet when the vehicle is being operated upon a

highway, unless such system is being operated to request

assistance or warn of a hazardous situation.

			This Section does not apply to authorized emergency

vehicles or vehicles engaged in advertising.

			Any violation of the provisions of this Section shall be

a petty offense punishable by a fine not to exceed $50.”

(Emphasis added.) 625 ILCS 5/12–611 (West 1996).

The defendant urges that we affirm the appellate court’s holding that this statute is a content-based restriction on free speech that

violates the first amendment. In the alternative, the defendant

contends that this statute should be struck down as

unconstitutionally overbroad or as violative of equal protection.

First Amendment

	The first amendment to the United States Constitution, made

applicable to the states through the due process clause of the

fourteenth amendment, prohibits governmental action that denies

or abridges freedom of speech. U.S. Const., amends. I, XIV. There

is no dispute that the sound amplification statute places restrictions

on expression protected by the first amendment. The statute

restricts an individual’s right to audible expression in a public

forum by limiting the volume of that expression. Moreover, music

has been recognized as a form of expression and communication

protected by the first amendment. See Ward v. Rock Against Racism, 491 U.S. 781, 790, 105 L. Ed. 2d 661, 674, 109 S. Ct. 2746, 2753 (1989).

Time, Place and Manner Regulations

	Nonetheless, it is well established that the government may,

“within reasonable bounds and absent censorial purpose, regulate

audible expression in its capacity as noise.” City of Ladue v. Gilleo, 512 U.S. 43, 48, 129 L. Ed. 2d 36, 43, 114 S. Ct. 2038, 2041

(1994). The first amendment does not guarantee the right to

communicate one’s views at all times and places or in any manner

that may be desired. A state may therefore impose reasonable

restrictions on the time, place or manner of constitutionally

protected speech occurring in a public forum. Ward, 491 U.S. at 791, 105 L. Ed. 2d at 675, 109 S. Ct. at 2753. A valid time, place

and manner regulation, however, must be content-neutral.

	A regulation is content-neutral so long as it is “ ‘justified

without reference to the content of the regulated speech.’ ” Ward, 491 U.S. at 791, 105 L. Ed. 2d at 675, 109 S. Ct. at 2753, quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 82 L. Ed. 2d 221, 227, 104 S. Ct. 3065, 3069 (1984).

Generally, laws that confer benefits or impose burdens on speech without reference to the ideas or views expressed are content-

neutral. Turner Broadcasting System, Inc. v. Federal Communications Comm’n, 512 U.S. 622, 643, 129 L. Ed. 2d 497, 518, 114 S. Ct. 2445, 2459 (1994). Thus, an ordinance prohibiting

the posting of signs on public property was held to be content-

neutral because it applied to all signs and was silent concerning any

speaker’s point of view. Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 804, 80 L. Ed. 2d 772, 786-87, 104 S. Ct. 2118, 2128 (1984).

	A content-neutral time, place and manner regulation is

subjected to what has been termed an “intermediate level of

scrutiny.” Turner, 512 U.S. at 662, 129 L. Ed. 2d at 530, 114 S. Ct. at 2469. In order to pass constitutional muster, such

regulations must be narrowly tailored to serve a significant

governmental interest, and must leave open ample alternative

channels for communication of the information. Ward, 491 U.S. at 791, 105 L. Ed. 2d at 675, 109 S. Ct. at 2753; Community for Creative Non-Violence, 468 U.S. at 293, 82 L. Ed. 2d at 227, 104 S. Ct. at 3069.

Content-Based Regulations

	A far more stringent test is applied to a regulation that restricts

speech because of its content. “At the heart of the First

Amendment lies the principle that each person should decide for

himself or herself the ideas and beliefs deserving of expression,

consideration, and adherence.” Turner, 512 U.S. at 641, 129 L. Ed. 2d at 517, 114 S. Ct. at 2458. For this reason, the first

amendment does not generally countenance governmental control

over the content of messages expressed by private individuals.

Turner, 512 U.S. at 641, 129 L. Ed. 2d at 517, 114 S. Ct. at 2458; see also People v. Sanders, 182 Ill. 2d 524, 529 (1998). Regulations that restrict speech because of its content are therefore

subjected to the “most exacting scrutiny.” Turner, 512 U.S. at 642, 129 L. Ed. 2d at 517, 114 S. Ct. at 2459. Content-based

regulations are presumptively invalid (R.A.V. v. City of St. Paul, 505 U.S. 377, 382, 120 L. Ed. 2d 305, 317, 112 S. Ct. 2538, 2542

(1992)), and will be upheld only if necessary to serve a compelling

governmental interest and narrowly drawn to achieve that end (Widmar v. Vincent, 454 U.S. 263, 270, 70 L. Ed. 2d 440, 447-48, 102 S. Ct. 269, 274 (1981); Sanders, 182 Ill. 2d at 530).

	Generally, laws that by their terms distinguish favored speech

from disfavored speech on the basis of the ideas or views expressed

are content-based. Hence, in Carey v. Brown, 447 U.S. 455, 462, 65 L. Ed. 2d 263, 270, 100 S. Ct. 2286, 2291 (1980), the Supreme

Court held that a statute which exempted labor picketing from a

prohibition on picketing was impermissibly content-based because

“it is the content of the speech that determines whether it is within

or without the statute’s blunt prohibition.”

Application to Illinois Sound Amplification Statute

	Accordingly, we must determine if the restriction on

expression contained in the Illinois sound amplification statute is

content-neutral or content-based. The defendant contends that the

Illinois sound amplification statute is content-based on its face. The

defendant premises this contention on the statute’s exemption for

advertising. The sound amplification statute expressly provides that

it does not apply to vehicles engaged in advertising. Consequently,

under the statute, the broadcast of an advertising message that can

be heard at a distance of 75 feet outside a vehicle is permitted,

while the broadcast of any other message at the same volume is

prohibited.1 Thus, the defendant contends, the plain language of the statute discriminates among speakers based on the content of the

speech being amplified.

	In Ward v. Rock Against Racism, 491 U.S. 781, 105 L. Ed. 2d 661, 109 S. Ct. 2746 (1989), the Supreme Court considered

whether a New York City regulation designed to control the

volume of music played in a park bandshell was content-neutral for

first amendment purposes. The regulation required all bandshell

performers to use sound-amplification equipment and a sound

technician provided by the city. The Court determined that the regulation was content-neutral because its justification, the desire

to control noise levels, had “ ‘nothing to do with content.’ ” Ward, 491 U.S. at 792, 105 L. Ed. 2d at 676, 109 S. Ct. at 2754, quoting Boos v. Barry, 485 U.S. 312, 320, 99 L. Ed. 2d 333, 344, 108 S. Ct. 1157, 1163 (1988). In upholding the regulation as a valid time,

place and manner regulation, the Court further noted that the

regulation, by its terms, forbade enforcement that would “vary the

sound quality or volume based on the message being delivered by

performers.” Ward, 491 U.S. at 794-95, 105 L. Ed. 2d at 677, 109 S. Ct. at 2755.

	The Supreme Court also discussed the content-neutrality

requirement for permissible “time, place or manner” regulations in City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 430, 123 L. Ed. 2d 99, 117, 113 S. Ct. 1505, 1517 (1993). In that case,

the city refused to allow distribution of commercial publications

through freestanding newsracks on public property, but allowed

the distribution of newspapers in that manner. According to the

city, its regulation was designed to limit the total number of

newsracks, for reasons of safety and aesthetics. The city argued

that the regulation was therefore a permissible time, place and

manner restriction because the interests advanced by the regulation

were not related to the content of the publications. The Court

rejected this argument, finding the regulation to be content-based:

			“The argument is unpersuasive because the very basis

for the regulation is the difference in content between

ordinary newspapers and commercial speech. True, there

is no evidence that the city has acted with animus toward

the ideas contained within respondents’ publications, but

just last Term we expressly rejected the argument that

‘discriminatory ... treatment is suspect under the First

Amendment only when the legislature intends to suppress

certain ideas.’ [Citation.] *** Under the city’s newsrack

policy, whether any particular newsrack falls within the

ban is determined by the content of the publication resting

inside that newsrack. Thus, by any commonsense

understanding of the term, the ban in this case is ‘content

based.’ ” Discovery Network, 507 U.S. at 429, 123 L. Ed. 2d at 116, 113 S. Ct. at 1516-17.

Notably, in explaining content-neutrality, the Court in Discovery Network gave the following illustration:

		“a[A] prohibition against the use of sound trucks emitting

‘loud and raucous’ noise in residential neighborhoods is

permissible if it applies equally to music, political speech, and advertising.” (Emphasis added.) Discovery Network, 507 U.S. at 428, 123 L. Ed. 2d at 116, 113 S. Ct. at 1516.

We conclude that the Illinois sound amplification statute is a

content-based regulation of expression. “While surprising at first

glance, the notion that a regulation of speech may be impermissibly

underinclusive is firmly grounded in basic First Amendment principles.” (Emphasis in original.) City of Ladue v. Gilleo, 512 U.S. 43, 51, 129 L. Ed. 2d 36, 45, 114 S. Ct. 2038, 2043 (1994).

The sound amplification statute, by its plain terms, premises the

permissibility of protected speech on its content. The statute’s

restriction does not apply equally to all types of amplified sound.

Rather, a certain type of speech, advertising, is exempted from the

volume restriction. The statute thus allows the amplification of an

advertising message, but prohibits the same amplification of all

other messages, including religious speech, political speech and

music. The permissible degree of amplification is dependent on the

nature of the message being conveyed. Thus, by any

“commonsense understanding of the term” (Discovery Network, 507 U.S. at 429, 123 L. Ed. 2d at 116, 113 S. Ct. at 1516-17), the

statute’s restriction is content-based.

	The State argues that the statute is content-neutral because it

merely regulates the volume of expression, without regard to the

content of the message being expressed. As noted above, the plain

language of the statute negates this assertion. Albeit only at or

above a particular level of volume, the statute nonetheless

expressly prohibits some speech and allows other speech based

upon the nature of the message being broadcast. Thus, the State’s

assertion that the statute expresses no preference for one type of

expression over another is simply incorrect; the statute favors

advertising messages over other messages by allowing only the

former to be broadcast at a particular volume.

	The State also argues that the statute must be deemed content-

neutral because it was not enacted with the purpose of discriminating against any particular expression. The State notes

the admonition of the Supreme Court that the government’s

purpose is the controlling consideration in determining content

neutrality. See Turner, 512 U.S. at 642, 129 L. Ed. 2d at 518, 114 S. Ct. at 2459; Ward, 491 U.S. at 791, 105 L. Ed. 2d at 675, 109 S. Ct. at 2754. According to the State, the Illinois legislature

enacted the sound amplification statute to promote the legitimate

governmental interests of traffic safety and noise control. Because

neither of these interests is related to the content of the message

being amplified, the State contends, the statute must be considered

content-neutral. We disagree.

	The fundamental problem with the State’s analysis in this

regard is that it ignores the language of the statute. As discussed

above, the sound amplification statute, on its face, discriminates

based on content. Advertising messages broadcast at a particular

volume are permitted while all other messages at that same volume

are prohibited. The fact that the statute may have been intended to

serve content-neutral goals is not dispositive. The Supreme Court

has repeatedly stated that “ ‘[i]llicit legislative intent is not the sine qua non of a violation of the First Amendment.’ ” Simon & Schuster, Inc. v. Members of the New York State Crime Victims

Board, 502 U.S. 105, 117, 116 L. Ed. 2d 476, 488, 112 S. Ct. 501, 509 (1991), quoting Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575, 592, 75 L. Ed. 2d 295, 309, 103 S. Ct. 1365, 1376 (1983). Consequently, the Court has

held, the mere assertion of a content-neutral purpose will not save

a law “which, on its face, discriminates based on content.” Turner, 512 U.S. at 642-43, 129 L. Ed. 2d at 518, 114 S. Ct. at 2459; see

also Discovery Network, 507 U.S. at 429, 123 L. Ed. 2d at 116, 113 S. Ct. at 1516. We therefore reject the State’s contention that

the mere existence of a content-neutral purpose renders the statute

content-neutral.

	Accordingly, because the sound amplification statute is a

content-based restriction on protected expression, it is

presumptively invalid and may be upheld only if it is necessary to

serve a compelling state interest and is narrowly drawn to achieve

that end. R.A.V. v. City of St. Paul, 505 U.S. 377, 382, 120 L. Ed. 2d 305, 317, 112 S. Ct. 2538, 2542 (1992); Widmar v. Vincent, 454 U.S. 263, 270, 70 L. Ed. 2d 440, 447-48, 102 S. Ct. 269, 274

(1981). The State confines its argument in this court to the

assertion that the sound amplification statute is content-neutral and

does not argue that the statute serves a compelling state interest,

such that it may survive strict scrutiny under the first amendment.

We find no compelling state interest which necessitates the

content-based restriction contained in the sound amplification

statute. In arguing that the statute is a permissible content-neutral

regulation, the State has asserted that the statute was enacted to

promote vehicular and pedestrian traffic safety and to limit undue

noise pollution. The State cites to passages from Supreme Court

opinions which note that the state has a “ ‘substantial’ ” interest in

“ ‘protecting its citizens from unwelcome noise.’ ” Ward, 491 U.S. at 796, 105 L. Ed. 2d at 678, 109 S. Ct. at 2756, quoting Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 806, 80 L. Ed. 2d 772, 787, 104 S. Ct. 2118, 2129 (1984). We have no

disagreement with this proposition; however, we are not persuaded

that this interest rises to the level of a compelling state interest that

will justify, under the first amendment, a content-based restriction

on free expression. See Village of Schaumburg v. Jeep Eagle Sales Corp., 285 Ill. App. 3d 481, 487 (1996). Moreover, the interests asserted by the State are in no manner served by the statute’s

exemption for advertising. The State provides no explanation as to

why a noncommercial message broadcast at a particular volume

poses a danger to the public, while an advertising message

broadcast at the same volume does not.

	In this regard, we note that the sound amplification statute is

particularly peculiar in its valuation of protected speech. By

exempting advertising messages from its volume restriction, the

statute gives greater protection to commercial speech than to

noncommercial speech. Commercial speech, however, has long

occupied a “subordinate position *** in the scale of First

Amendment values.” United States v. Edge Broadcasting Co., 509 U.S. 418, 430, 125 L. Ed. 2d 345, 358, 113 S. Ct. 2696, 2705

(1993). Commercial speech is therefore subject to “ ‘modes of

regulation that might be impermissible in the realm of

noncommercial expression.’ ” Board of Trustees of the State University v. Fox, 492 U.S. 469, 477, 106 L. Ed. 2d 388, 402, 109 S. Ct. 3028, 3033 (1989), quoting Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456, 56 L. Ed. 2d 444, 453, 98 S. Ct. 1912, 1918 (1978). The Illinois sound amplification statute curtails

noncommercial speech more severely than commercial speech and

thus inverts the recognized positions of commercial and

noncommercial speech in first amendment jurisprudence.

	We therefore hold that the Illinois sound amplification statute

is a content-based restriction on speech that violates the first

amendment. Given this holding, we need not reach the defendant’s

claims that the statute is unconstitutionally overbroad or that it

violates equal protection.

CONCLUSION

	For the foregoing reasons, the judgment of the appellate court

reversing the defendant’s conviction for illegal sound amplification

is affirmed.

Affirmed.