National Amusements, Inc. v. Town of Dedham

Citation846 F. Supp. 1023
Decision Date06 February 1994
Docket NumberCiv. A. No. 90-10472-Y.
PartiesNATIONAL AMUSEMENTS, INC., Plaintiff, v. TOWN OF DEDHAM, Defendant.
CourtU.S. District Court — District of Massachusetts

Theodore E. Dinsmoor, Finnegan & Stanzler, Ellen L. Janos, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., Stuart T. Rossman, Atty. Gen.'s Office, Trial Div., Real Estate Section, Gail E. Glick, U.S. Dept. of Labor, Office of the Sol., Samuel L. Rodriguez, Epstein, Becker & Green, P.C., Boston, MA, for plaintiff.

Joyce F. Frank, Karen V. Kelly, Kopelman and Paige, Boston, MA, for defendant.

MEMORANDUM AND ORDER

YOUNG, District Judge.

As the eye is the window of the soul, so too are American movies the expression of our collective psyche. Movies inform us about our lives, our history, our cultures, and those of others — and distort all four. See George MacDonald Fraser, The Hollywood History of the World — From One Million Years B.C. to Apocalypse Now (1988). They make us laugh and cry even as they exalt and cheapen our daily lives. They raise the most profound questions of our existence yet are but an ephemeral parody of reality. Above all, since the American movie industry is a business — big business — movies must entertain, and "there is no doubt that entertainment ... enjoys First Amendment protection." Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 578, 97 S.Ct. 2849, 2859, 53 L.Ed.2d 965 (1977). Guarding the frontier of that protection is a perennial task of America's courts. No function could be more vital.

This particular dispute pits a huge cinema complex against a Massachusetts town and requires analysis of some serious constitutional questions. The matter comes before the Court upon the motion of the Town for summary judgment and the essential facts are undisputed.

UNDISPUTED FACTS

The Plaintiff National Amusements, Inc. ("National") is a corporation organized under the laws of Maryland with its principal place of business located at 200 Elm Street in the Town of Dedham ("the Town"). National owns and operates Showcase Cinemas ("Showcase"), a theater complex consisting of twelve theaters, all of which exhibit first run movies. The Showcase is located on Route 1 in Dedham. In 1978, Showcase commenced the regular exhibition of late evening movies ("late shows") on Friday and Saturday nights. These late shows usually start between 11:30 p.m. and 12:30 a.m. and end between 1:00 a.m. and 2:30 a.m.

At a meeting of the Board of Selectmen (the "Board") for the Town of Dedham on January 12, 1989, a selectwoman voiced her concern about traffic and security problems at the Showcase parking lot and asked for a report from the police department of all incidents at that location for the past three months. A fellow selectman expressed similar concerns at the January 19, 1989 meeting of the Board. Consequently, the Board requested that the management of Showcase come before the Board to discuss the situation.

The Board also placed Article Forty on the Warrant for the annual Town Meeting. As proposed, Article Forty stated:

ARTICLE FORTY: By the Board of Selectmen: To see if the Town will vote to amend Chapter XIII of the Town By-laws by adding the following new section:
Section 42B — No holder of an entertainment license for theatrical exhibition, public show, public amusement, concert, dance or exhibition, pursuant to General Laws Chapter 140, sections 181 and 183A shall conduct business between the hours of 12 midnight and 6:00 a.m.
This By-law shall not apply to the sale of food or alcoholic beverages to be consumed on the premises at which they are sold when such sale is by a licensed common victualler previously engaged in the sale of food to be consumed on the premises.

(National's Ex. 41.)

On January 23, 1989, the Board sent a letter to the Vice-President of Operations of National conveying the Board's concern over problems stemming from the crowds at the late shows and inviting a representative of National to meet with the Board on February 2, 1989 to discuss the matter. A representative of National did meet with the Board on that day. Approximately thirty residents of the Town, some of whom lived in the general vicinity of the theater, were also present at the meeting.

National took the Board's concerns seriously. Immediately after the meeting a representative of National met with the Town's Chief of Police to discuss ways to improve security in and around the theater. Virtually immediately, National set up a plan to increase neighborhood protection on Friday and Saturday nights. In accordance with this plan National privately hired off-duty Dedham Police Officers to patrol the theater and the adjacent community and furnished a vehicle to patrol the Showcase parking lot on Friday and Saturday evenings. Occasionally this vehicle would also patrol the surrounding residential neighborhood as well as the local public transportation stops. This new security plan went into effect on February 10, 1989. In addition to heightened security, National also instituted a program of litter clean-up crews and screen announcements describing alternative auto exits.

Despite National's attempts to address the concerns of the Town, the Town Meeting voted on April 24, 1989, to adopt an amended Article Forty which pushed the closing time back to 12:30 a.m. and expressly exempted late night ballroom dancing from the new By-law. On August 14, 1989, however, the Attorney General of the Commonwealth of Massachusetts declared amended Article Forty unconstitutional on the ground that the proposed By-law, by distinguishing ballroom dancing from other forms of entertainment, and more specifically from other forms of dance, failed the content neutrality test and thus violated the Declaration of Rights of the Constitution of Massachusetts.

Undaunted, the Board proposed a new Article Four on the Town Meeting Warrant for a Special Town Meeting on November 6, 1989. The new Article Four stated:

Article 4: By the Board of Selectmen: To see if the Town will vote to amend Chapter XIII of the Revised By-laws of the Town of Dedham, entitled "Police Regulations" by adding a new section at the end thereof, as follows: Section 57.
Unless otherwise restricted, no holder of a license issued by the Town of Dedham, pursuant to Massachusetts General Laws, Chapter 140, sections 177A, 181, and 183A,1 shall permit any activity licensed thereunder to be conducted between the hours of 1:00 a.m. and 6:00 a.m.
Recommendation: That it be so voted.

(National's Ex. 44.)

The Dedham Town Meeting duly approved this Article. On February 8, 1990, the Attorney General for the Commonwealth approved Article Four albeit noting expressly that he was unable to make a factual determination as to whether the effect of closing certain licensed establishments between 1:00 a.m. and 6:00 a.m. was substantially related to the Town's proper governmental interests or whether the effect was greater than necessary to protect that governmental interest. Upon the approval of the Attorney General, Article Four (hereafter called "the By-law") took effect twenty days later.

National was ready. It filed suit in this court on the same day. In its complaint National alleged that Article Four violates National's free speech rights under both the United States Constitution and the Massachusetts Declaration of Rights, violates the due process clause in being unfairly vague and ambiguous, and violates the equal protection clause in that it unreasonably restricts National's hours of operation while permitting other licensed establishments beyond the reach of Mass.Gen.L. ch. 140, §§ 177A, 181, and 183A — for example, hotel lounges and bars and other forms of licensed entertainment such as cable television — to continue operation after 1:00 a.m. National sought injunctive relief and this Court, as is its wont, consolidated the hearing on National's motion for a preliminary injunction with an immediate trial on the merits. Fed. R.Civ.P. 65(a)(2). Faced by the prospect of a full trial, the Board of Selectmen caved in, stipulating that the By-law would not be enforced with respect to ten of the twelve theaters in the Showcase complex pending the outcome of the instant case.2 National, for its part, withdrew its motion for preliminary injunctive relief, and both parties successfully sought a continuance on the ground that the case was probably on its way to settlement.

The parties could not, however, reach a settlement. For a time, the Court urged adoption of a statement of agreed facts, see Continental Grain Co. v. Puerto Rico Maritime Shipping Auth., 972 F.2d 426, 429 n. 7 (1st Cir.1992) and Boston Five Cents Savings Bank v. Secretary of Dep't of Housing and Urban Dev., 768 F.2d 5, 11-12 (1st Cir.1985), but, despite efforts toward this end, no agreement as to material facts was reached. As the case dragged on, National evidently began to feel that its position needed bolstering in light of the Town's argument that the By-law is a reasonable, content neutral `time, place, or manner' restriction. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47, 106 S.Ct. 925, 928, 89 L.Ed.2d 29 (1986). In late June and early July, 1993, National secretly engaged a marketing research firm to visually survey the patrons of its evening shows, note their race, and inquire of a representative sampling of late show patrons (without regard to race) why they chose to attend the late show. (National's Ex. 110).3 This survey — marked confidential and privileged (though it is not) — purports to show that the majority of late show movie viewers are black, and that many late night patrons prefer that time slot. (Id.) National now contends, without amending its Complaint, that the survey is evidence that racial animus impelled the Town to enact the By-law. Faced with an ever expanding stain of allegations, escalating defense costs, and no end in sight, the Town did what it could easily have done three years ago...

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  • National Amusements, Inc. v. Town of Dedham, 94-1176
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • November 10, 1994
    ...state constitutions. 3 Following pretrial discovery, Dedham successfully moved for summary judgment. See National Amusements, Inc. v. Town of Dedham, 846 F.Supp. 1023 (D.Mass.1994). This appeal ensued. II. THE SUMMARY JUDGMENT STANDARD A federal court may grant summary judgment in a civil a......

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