Atlantic Beach Casino, Inc. v. Morenzoni

• Decision Date: 28 September 1990
• Docket Number: Civ. A. No. 90-0471.
• Citation: 749 F. Supp. 38
• Parties: ATLANTIC BEACH CASINO, INC. d/b/a the Windjammer, et al., Plaintiffs, v. Edward T. MORENZONI, et al., Defendants.
• Court: U.S. District Court — District of Rhode Island

749 F. Supp. 38

ATLANTIC BEACH CASINO, INC. d/b/a the Windjammer, et al., Plaintiffs, v. Edward T. MORENZONI, et al., Defendants.

Civ. A. No. 90-0471.

United States District Court, D. Rhode Island.

September 28, 1990.

Stephen J. Fortunato, Jr., R.I. Affiliate, American Civ. Liberties Union, Warwick, R.I., for plaintiffs.

John Charles Levanti, Westerly, R.I., for defendants.

OPINION AND ORDER

PETTINE, Senior District Judge.

In the last few years legislators and citizens have paid increasing attention to the lyrical content of popular music. The interest is not entirely new, for "rulers have long known music's capacity to appeal to the intellect and to the emotions and have censored musical compositions to serve the needs of the state." Ward v. Rock Against Racism, ___ U.S. ___, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989). The controversy some groups have ignited is not, in itself, any reason to take such speech outside the First Amendment. Indeed, expression may "best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 896, 93 L.Ed. 1131 (1949). The message and reputation of the rap music group 2 Live Crew evidently came to the attention of the Westerly Town Council, for they have taken steps toward possibly preventing the group from playing a scheduled concert. It is in this way that 2 Live Crew became the subject of, though not a party to, the present litigation.

On September 19, 1990, plaintiffs, who have contracted to present the 2 Live Crew concert, moved for a temporary restraining order prohibiting the defendants, members of the Westerly Town Council, from holding a show cause hearing on September 24, 1990, concerning the revocation of plaintiffs' entertainment license; from revoking the plaintiffs' entertainment license; from prohibiting the 2 Live Crew concert scheduled for October 6, 1990; and from imposing any special requirements on plaintiffs relative to the October 6 presentation. On September 21, 1990, the parties and this Court agreed that the matter would be considered as an application for a preliminary injunction and that the show cause hearing would be continued until October 1, 1990, subject to and dependent upon this Court's ruling. Based on the September 21 conference and my review of the parties' briefs, this Court has determined that the central issue in this case is plaintiffs' facial challenge to the town of Westerly's licensing ordinances on First Amendment grounds. Because I find, for the reasons set out below, that the ordinances as written are unconstitutional under the First and Fourteenth Amendments, defendants are enjoined from conducting a show cause hearing and from revoking plaintiff's entertainment license. I also enjoin the defendants from prohibiting the concert for failing to allege sufficient harm to overcome plaintiffs' First Amendment rights.

I. TRAVEL OF THE CASE

The plaintiffs in this case, Atlantic Beach Casino, Inc. and M.J. Murphy own and operate the Windjammer, a club in Misquamicut, Rhode Island, pursuant to entertainment and liquor licenses issued by the defendants, the Westerly Town Council. The club has a capacity of 1,700 persons and regularly books concerts and dances for adult members of the general public. These concerts feature live bands, some of them nationally and internationally known.

Prior to August 30, 1990 the Windjammer contracted with 2 Live Crew for a live performance scheduled for October 6, 1990. 2 Live Crew are a rap music group from Miami who have gained notoriety from repeated attacks on their lyrics on obscenity grounds. The most well-publicized events concerned a June 6, 1990 decision by U.S. District Court Judge Gonzalez finding the group's third album, As Nasty as They Wanna Be, obscene under civil standards. See Skyywalker Records, Inc. v. Navarro, 739 F.Supp. 578 (S.D.Fla.1990). Following the federal court decision, the first federal ruling on the obscenity of recorded music, the group was arrested after a performance in Hollywood, Florida. The group has not yet gone to trial on the criminal charges and is appealing the ruling in the civil case.

Undoubtedly aware of the group's history and the Windjammer's contract, the Town Council sent a letter to M.J. Murphy, general manager of the Windjammer, on August 30th directing him to appear before them for a public hearing on September 4, 1990 regarding the 2 Live Crew performance. At the meeting, members of the Council expressed their concerns about the message conveyed by the group's lyrics. Individual members discussed the supposed immorality of the songs and their contribution to "America's slide into the sewer." They were also concerned about public safety, in particular the possible rowdy behavior of the large number of the group's fans expected to come to the town for the concert.

At the conclusion of the meeting, the Council voted to refer the issue of obscenity to the Rhode Island Attorney General. The Town Council also advised the plaintiffs that it was considering revoking the liquor and entertainment licenses for the Windjammer. Eventually the Council set September 24, 1990, as the date for a show cause hearing on the licenses. Plaintiffs requested written notice of any statutes, ordinances or regulations relating to the action, as well as any data that the Town Council had with regard to any possible problems the Council anticipated at the concert.

On September 14, 1990, the Council President sent a letter to the plaintiffs formally notifying them that the hearing would be held on September 24, and listing their "areas of concern."¹ The letter also indicated that the hearing was being held pursuant to the authority granted under Rhode Island General Laws 5-22-2² and the Westerly Code of Ordinances Section 17-87.³ On September 19, 1990, plaintiffs filed this action for injunctive relief.

II. PRELIMINARY ISSUES

Before considering the merits of the motion for a restraining order, the Court must consider its own jurisdiction. Jurisdiction has properly been asserted under 28 U.S.C. § 1343. See Hague v. C.I.O., 307 U.S. 496, 519, 59 S.Ct. 954, 965-66, 83 L.Ed. 1423 (1939). Moreover, this Court has jurisdiction to grant declaratory and injunctive relief under 28 U.S.C. §§ 2201, 2202, and 42 U.S.C. § 1983.

The defendants assert that this Court lacks subject matter jurisdiction because there is no case or controversy. The cases that the defendants cite for this conclusion, however, are inapposite. Plaintiffs are making a facial challenge to the town ordinance due to its lack of standards. The Supreme Court has "long held that when a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license." Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 755-56, 108 S.Ct. 2138, 2142-43, 100 L.Ed.2d 771 (1988), see Venuti v. Riordan, 521 F.Supp. 1027, 1029-30 (D.Ma.1981). The 2 Live Crew performance is protected First Amendment activity. See Ward, 109 S.Ct. at 2753 (1989) ("Music, as a form of expression and communication, is protected under the First Amendment."). Therefore, the plaintiffs, who currently hold an entertainment license, need not wait for the defendants to review and deny their license before challenging the statute.

III. INJUNCTIVE RELIEF

In order for plaintiffs to prevail in their request for a preliminary injunction, they must meet the following standards: the plaintiff must demonstrate a likelihood of success on the merits, immediate and irreparable harm, that the injury outweighs any harm engendered by the grant of injunctive relief and that the public interest will not be adversely affected by such grant. LeBeau v. Spirito, 703 F.2d 639, 642 (1st Cir.1983). I shall address each of these standards in turn.

A. Likelihood of Success on the Merits

Rather than allow 2 Live Crew to perform and then prosecute for any illegal activity that could occur, the Town Council wishes to review and decide in advance whether to allow the performance to go forward. This is a prior restraint. See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 554-55, 95 S.Ct. 1239, 1244-45, 43 L.Ed.2d 448 (1975). "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963). A licensing scheme involving such prior restraint survives constitutional scrutiny only when the law contains "narrow, objective and definite standards to guide the licensing authority." Shuttlesworth v. Birmingham, 394 U.S. 147, 150-51, 89 S.Ct. 935, 938-39, 22 L.Ed.2d 162 (1969), see Lakewood, 486 U.S. 760, Southeastern Promotions, 420 U.S. at 553, 95 S.Ct. at 1243-44, Cox v. State of Louisiana, 379 U.S. 536, 557-58, 85 S.Ct. 453, 465-66, 13 L.Ed.2d 471 (1965), Irish Subcommittee v. R.I. Heritage Commission, 646 F.Supp. 347, 359 (D.R.I.1986).

The Westerly Ordinance, see supra note 3, provides even less guidance than the law struck down in Shuttlesworth. Id. 394 U.S. at 149, 89 S.Ct. at 937-38 (permit could be denied if demanded by the "public welfare, peace, safety, health, decency, good order, morals or convenience"). For example, Section 17-87 merely states, "Any license granted under Section 17-84 and 17-88 may be revoked by the Town Council after public hearing for cause shown." As in Venuti, the Westerly ordinance is utterly devoid of standards. See 521 F.Supp. at 1030-31 (striking down entertainment license ordinance). It leaves the issuance and revocation of licenses to the unbridled discretion of the Town Council. Our cases have long noted that "the danger of censorship and of abridgement of...