308 F.3d 106 (1st Cir. 2002), 01-2600, Casey v. City of Newport, R.I.

Docket Nº:01-2600.
Citation:308 F.3d 106
Party Name:Laurel CASEY and Asterix and Obelix, LLC, Plaintiffs, Appellants, v. CITY OF NEWPORT, RHODE ISLAND, Defendant, Appellee.
Case Date:October 16, 2002
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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308 F.3d 106 (1st Cir. 2002)

Laurel CASEY and Asterix and Obelix, LLC, Plaintiffs, Appellants,

v.

CITY OF NEWPORT, RHODE ISLAND, Defendant, Appellee.

No. 01-2600.

United States Court of Appeals, First Circuit

October 16, 2002

Heard April 1, 2002.

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[Copyrighted Material Omitted]

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Thomas W. Kelly for Appellants.

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Marc DeSisto for Appellee.

Before TORRUELLA and LIPEZ, Circuit Judges, and McAULIFFE,[*] District Judge.

LIPEZ, Circuit Judge.

This case requires us to assess the constitutionality of restrictions imposed by the City of Newport, Rhode Island (City), on the performance of music at Asterix and Obelix (A & O), a Newport restaurant/nightclub. The district court rejected a First Amendment challenge to the restrictions mounted by A & O and Laurel Casey, a cabaret singer who performs at A & O, and entered summary judgment for the City on the ground that the restrictions were narrowly tailored to serve a significant 0governmental interest. Concluding that the district court's narrow-tailoring decision lacks support in the record, we vacate the judgment and remand for further proceedings.

I.

A & O is located at 599 Thames Street in Newport. The property is zoned "limited business" and abuts a residential neighborhood. In June of 1998 A & O was granted an entertainment license permitting musical performances, pursuant to Newport, R.I., Ordinances ch. 5.68 (Public Entertainment). The word "None" was typed next to the word "Amplification" on the approved application. On June 4, 1999, Casey performed at A & O with her voice amplified, accompanied by an amplified bass and an unamplified piano. That evening A & O was cited for violating the City's noise ordinance. Newport, R.I., Ordinances ch. 8.12 (Noise Abatement) (setting maximum decibel level of 75 for districts zoned "limited business"). Casey explained the events which gave rise to the violation of the noise ordinance at a City Council hearing on June 9:

Now, to tell you the truth, it was my fault last Friday that we went over the . . . Noise Ordinance. A person in the audience requested that I sing from an operetta and I began to sing a portion of Rinaldo. There are several high notes that go above high note C in R[i]naldo and it was those high notes apparently that shot us off the scale.

The complaint against A & O was subsequently dismissed. As far as the record reveals, A & O was not cited for violating the terms of its entertainment license.

On June 9, 1999, the City Council held a hearing on A & O's application for a renewed license that would permit amplification. Residents of the neighborhood voiced displeasure with the noise emanating from A & O during musical performances. The Council voted to renew A & O's entertainment license, but with the no-amplification restriction still in place, and with an added prohibition against singing (whether amplified or not).

On June 18, 1999, Casey filed a complaint against the City in federal district court seeking declaratory and injunctive relief and damages under 42 U.S.C. § 1983 on the ground that the no-singing and no-amplification restrictions violated her right to free expression under the First Amendment. On June 23, 1999, the Council removed the no-singing restriction, which it had imposed in the mistaken belief that A & O's previous license had included the same restriction.1 The no-amplification restriction, however, remained in force. The

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Council also required that A & O keep its doors and windows closed during musical performances.2 A First Amended Complaint was filed on July 9, 1999, adding A & O as a plaintiff.

On May 1, 2000, the Council again renewed A & O's entertainment license, this time with amplification of singing allowed, but amplification of musical instruments forbidden. A Second Amended Complaint filed on July 31, 2000, added a count challenging the ban on amplification of instruments effective as of June 2000. After the parties filed cross-motions for summary judgment, the district court granted summary judgment for the City on October 24, 2001, holding that the challenged restrictions were valid time, place, and manner regulations that did not infringe upon the plaintiffs' First Amendment rights. Plaintiffs filed this timely appeal in which they ask us to vacate the judgment of the district court and order the entry of a judgment declaring that the City's license restrictions are unconstitutional, enjoining their enforcement, and leaving the question of damages for the district court on remand.

II.

We review the district court's grant of summary judgment for the City de novo, examining the record in the light most favorable to Casey and A & O and drawing all reasonable inferences in their favor. We affirm the district court's decision only if "there is no genuine issue of material fact" and the City "is entitled to judgment as a matter of law." See Knights of Columbus, Council # 94 v. Town of Lexington, 272 F.3d 25, 30 (1st Cir. 2001). Here we focus on the legal question of whether the challenged restrictions violate the First Amendment. See id.

"Music, as a form of expression and communication, is protected under the First Amendment." Ward v. Rock Against Racism, 491 U.S. 781, 790, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). Expression need not include words to qualify for First Amendment protection. The Supreme Court has said that "a narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a 'particularized message, ' would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll." Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 569, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) (citation omitted). Thus it is not just Casey's verbal expression, but also the musical sound she and her band produce, that is protected under the First Amendment.

Nevertheless, "the government may impose reasonable restrictions on the time, place, or manner of protected speech, " if those restrictions are (1) content neutral; (2) narrowly tailored to serve a significant governmental interest; and (3) leave open ample alternative channels of communication. Ward, 491 U.S. at 791, 109 S.Ct. 2746. We have described our review under this standard as "intermediate scrutiny." Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 736 (1st Cir. 1995). Intermediate scrutiny is "more demanding than the 'rational basis' standard that is often used to gauge the constitutionality of economic regulations, " id., but less rigorous than strict scrutiny, where we inquire "whether a regulation 'is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.' " Id. (quoting Arkansas Writers'

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Project Inc. v. Ragland, 481 U.S. 221, 231, 107 S.Ct. 1722, 95 L, Ed.2d 209 (1987)). If a regulation of speech is not narrowly tailored to serve a significant governmental interest, it cannot be deemed constitutional. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 668, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (vacating district court decision that content-neutral regulation of speech was constitutional because facts in the record failed to establish that narrow-tailoring requirement was met). The burden of proof is on the City to demonstrate that its restrictions on speech are narrowly tailored. See Board of Trustees v. Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989) ("[S]ince the State bears the burden of justifying its restrictions, it must affirmatively establish the reasonable fit we require.") (citation omitted).

The district court held that the challenged restrictions were permissible under the Ward test. Although chronologically the first restriction imposed on performers at A & O was the ban on singing, we think it makes more sense to begin our legal analysis with the no-amplification and no-amplification-of-instruments restrictions. We deal with the no-singing restriction last.3

A. No Amplification

1. Content Neutrality

The Supreme Court has said that "[t]he principal inquiry in determining content neutrality . . . is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. The government's purpose is the controlling consideration." Ward, 491 U.S. at 791, 109 S.Ct. 2746 (citation omitted). Thus a regulation that has a disparate effect on different styles of music may nevertheless be considered content neutral if the intent behind the regulation is unrelated to content. The district court found that "[t]he [City's] clear objective in imposing the [no-amplification] restriction was to reduce noise . . ., a purpose unrelated to the content of the message [appellants] sought to convey." There being no suggestion in the record that the no-amplification restriction was motivated by the content of Casey's performances, the restriction qualifies as content neutral.

2. Narrow Tailoring

On the question of narrow tailoring, the district court found that the no-amplification restriction in force between June of 1999 and June of 2000 (banning amplification of both singing and instruments) "serves defendants' articulated interest" in noise reduction, and that without the restriction, "the City would be unable to control effectively the volume of music, amplified or unamplified, emanating from [A & O]." The court then declared that the no-amplification restriction "does not burden more speech than necessary, " and that "plaintiffs could still convey their respective messages, but . . . without the aid of an amplifier." In sum, the district court found that the City could not have achieved the...

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