Carew-Reid v. Metropolitan Transp. Authority

• Decision Date: 18 May 1990
• Docket Number: CAREW-REI,No. 1172,K,D,1172
• Citation: 903 F.2d 914
• Parties: Lloydathleen Mock, Lawrence Kobak, a/k/a "Sailorman Jack," James Humphries, Carleton Ferguson Hypolite, Sloboden Vucicevic, Peter Barkman, Antonio Gomes, and Subway Troubadors Against Repression, Plaintiffs-Appellees, v. METROPOLITAN TRANSPORTATION AUTHORITY, Metro-North Commuter Railroad Company, New York City Transit Authority, and Robert R. Kiley and David L. Gunn, in their individual and official capacities, Defendants-Appellants. ocket 90-7143.
• Court: U.S. Court of Appeals — Second Circuit

Page 914

903 F.2d 914

Lloyd CAREW-REID, Kathleen Mock, Lawrence Kobak, a/k/a "Sailorman Jack," James Humphries, Carleton Ferguson Hypolite, Sloboden Vucicevic, Peter Barkman, Antonio Gomes and Subway Troubadors Against Repression, Plaintiffs-Appellees, v. METROPOLITAN TRANSPORTATION AUTHORITY, Metro-North Commuter Railroad Company, New York City Transit Authority, and Robert R. Kiley and David L. Gunn, in their individual and official capacities, Defendants-Appellants.

No. 1172, Docket 90-7143.

United States Court of Appeals Second Circuit.

Argued March 7, 1990.

Decided May 18, 1990.

Susan E. Weiner, Deputy Gen. Counsel, Metropolitan Transp. Authority, New York City, for appellants.

David B. Goldstein, New York City (Eric M. Lieberman, Edward Copeland, Rabinowitz, Boudin, Standard, Krinsky & Lieberman, National Emergency Civil Liberties Committee, New York City, of counsel), for appellees.

Before TIMBERS, MESKILL and ALTIMARI, Circuit Judges.

MESKILL, Circuit Judge:

This is an appeal from an order of the United States District Court for the Southern District of New York, Stanton, J., granting plaintiffs-appellees' motion for a preliminary injunction restraining defendants-appellants from enforcing a ban against the use of amplifiers by musicians on New York City subway platforms. The question presented on appeal is whether the amplifier ban constitutes a reasonable time, place or manner restriction within the meaning of the First Amendment.

BACKGROUND

Plaintiffs-appellees are musicians who perform in the New York City subway system and an organization whose purpose is to promote the rights of subway musicians. Defendant-appellant New York City Transit Authority (NYCTA) is a public benefit corporation created by N.Y.Pub.Auth.Law Sec. 1201 (McKinney 1982 & Supp.1990). Its statutory purpose is to operate the subway system "for the convenience and safety of the public." Id. Sec. 1202. Defendant-appellant Metropolitan Transportation Authority (MTA) is a public benefit corporation created to operate the commuter transportation system in New York City and the surrounding counties. Id. Secs. 1260-1279-b.

In October 1987, the NYCTA issued experimental guidelines that permitted a wide range of expressive activities in the subway system, including public speaking, distribution of written materials, solicitation for charitable, religious and political causes, and artistic performances. The experimental guidelines, however, expressly prohibited the playing of any instrument or the use of an amplifier that created "excessive" noise. Moreover, a permit was required before an amplifier could be used, and the permit placed a ninety decibel limit on the use of the amplifier.

The experience with the experimental guidelines led the NYCTA to adopt amended rules for musical performances in the subway system. The amended rules banned entirely the use of amplifiers on subway platforms. N.Y.Comp.Code R. &amp The amplifier ban went into effect on October 25, 1989. Appellees brought suit in the district court and sought a preliminary injunction restraining the enforcement of the amplifier ban. They claimed that the ban impaired their ability to perform their music and that amplified music did not exceed the 85 decibel limit any more than unamplified music. In lieu of an evidentiary hearing, the parties submitted affidavits in support of their respective positions. The district court granted a preliminary injunction, concluding that the amplifier ban violated appellees' rights under the First Amendment. Appellees also challenged that portion of the new rules that prohibits unauthorized commercial activity in the subway system insofar as it restricted their ability to sell audio tapes of their music. The district court denied this aspect of their motion for a preliminary injunction, and no appeal has been taken therefrom.

Regul. tit. 21, Sec. 1050.6(c)(4) (1989). All other musical performances were restricted to a noise level not to exceed 85 decibels when measured from five feet away. Id. These changes were based on the NYCTA's surveys during the period that the experimental guidelines were in force, indicating that amplified music "routinely" exceeded the 85 decibel level. Moreover, the NYCTA pointed to the potential safety hazards to subway riders and maintenance crews as well as the interference with the duties of transit police caused by music above 85 decibels. Finally, it asserted that enforcement of the 85 decibel limit would be made more difficult without the amplifier ban.

DISCUSSION

"Music is one of the oldest forms of human expression." Ward v. Rock Against Racism, --- U.S. ----, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989). As appellants concede, music, as a form of expression, is protected by the First Amendment. Id.; Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65, 101 S.Ct. 2176, 2180, 68 L.Ed.2d 671 (1981); Calash v. City of Bridgeport, 788 F.2d 80, 82 (2d Cir.1986). This is only the beginning of our inquiry, however. The Supreme Court has repeatedly held that "government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions 'are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.' " Rock Against Racism, 109 S.Ct. at 2753 (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984)); accord Frisby v. Schultz, 487 U.S. 474, 481-82, 108 S.Ct. 2495, 2500-01, 101 L.Ed.2d 420 (1988); Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 44, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983).

Because this appeal is from a district court order entering a preliminary injunction, our scope of review is circumscribed. Our review is limited to whether the district court abused its discretion. Doran v. Salem Inn, Inc., 422 U.S. 922, 931-32, 95 S.Ct. 2561, 2467-68, 45 L.Ed.2d 648 (1975); Stormy Clime, Ltd. v. ProGroup, Inc., 809 F.2d 971, 973-74 (2d Cir.1987).

A. Content Neutrality

A valid time, place or manner restriction cannot find its justification in the suppression of the content of the expression that it regulates. Community for Creative Non-Violence, 468 U.S. at 295, 104 S.Ct. at 3070; Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 648, 101 S.Ct. 2559, 2564, 69 L.Ed.2d 298 (1981). In other words, the "evil" that the regulation seeks to eliminate cannot be the regulated expression's content or message. Yet, "[a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others." Rock Against Racism, 109 S.Ct. at 2754; see City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47-49, 106 S.Ct. 925, 928-30, 89 L.Ed.2d 29 (1986).

Appellees argue and the district court found that amplified music is not merely music that is made louder by an electronic device; rather, it is a different kind of music. As the affidavits submitted to the district court by the individual appellees reflect, some instruments cannot be played without an amplifier. Moreover, the sound of vocals or of an acoustic instrument can be transformed through the use of an amplification device into a unique musical form. Thus, the amplifier ban does not just exclude music whose volume is electronically increased; instead, it eliminates from the subway platforms a separate musical medium.

The object of the amplifier ban, nevertheless, is the elimination of excessive noise on subway platforms, not the suppression of the kind of "electrified" music that appellees play. Therefore, even though the regulation is based on a particular medium of expression and in fact is a complete ban on the use of that medium, it remains neutral with regard to the expression's content. See City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804-05, 104 S.Ct. 2118, 2128-29, 80 L.Ed.2d 772 (1984) (complete prohibition on posting of signs on public property).

B. Narrow Tailoring

In addition to being content-neutral, a time, place or manner restriction must be narrowly tailored to serve a significant governmental interest. The elimination of excessive noise is a substantial and laudable goal. Rock Against Racism, 109 S.Ct. at 2756; Grayned v. City of Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222 (1972); Kovacs v. Cooper, 336 U.S. 77, 87-88, 69 S.Ct. 448, 453-54, 93 L.Ed. 513 (1949) (plurality opinion). In this case, the interest in eradicating excessive noise is bolstered by the serious public safety concerns posed by the noise to both the riders and employees of the subway system. In particular, appellants' affidavits state that amplified music is usually so loud that it interferes with police communications, the public address system on the subway platforms and the work of track crews. Excessively loud noise, according to appellants, can drown out train whistles, putting track workers at risk, and can prevent passengers from hearing routine and emergency announcements.

Although appellees do not dispute that the interest in eliminating excessive noise from the subway platforms is a significant one, they do argue that, because there is no necessary connection between amplified music and loud music, the amplifier ban suppresses more speech than is necessary to achieve the interest of noise reduction. The district court accepted this position. Relying on appellants' failure to show that every musician who uses an amplifier exceeds the 85 decibel limit, the district judge determined that excessive noise is only a possible byproduct of the use of amplifiers by musicians. Furthermore, he concluded that the goal of noise reduction could be achieved by enforcing the 85 decibel limit through the use of...