Caswell v. Licensing Com'n for Brockton

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Before HENNESSEY; HENNESSEY
• Citation: Caswell v. Licensing Com'n for Brockton, 444 N.E.2d 922, 387 Mass. 864 (Mass. 1983)
• Decision Date: 11 January 1983
• Parties: , 38 A.L.R.4th 916 Frank E. CASWELL v. LICENSING COMMISSION FOR BROCKTON.

Page 922

444 N.E.2d 922

387 Mass. 864, 38 A.L.R.4th 916

Frank E. CASWELL v. LICENSING COMMISSION FOR BROCKTON.

Supreme Judicial Court of Massachusetts Plymouth.

Argued Sept. 13, 1982.

Decided Jan. 11, 1983.

Valerie L. Pawson, Boston (Ira H. Zaleznik, Boston, with her), for plaintiff.

Mark G. Cerel, Westwood, for Licensing Com'n for Brockton.

Francis X. Bellotti, Atty. Gen. and Scott A. Smith, Asst. Atty. Gen., for the Atty. Gen., amicus curiae, submitted a brief.

David W. Maher and James A. Klenk, Chicago, Ill., for Amusement Game Mfrs. Ass'n, amicus curiae, submitted a brief.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

HENNESSEY, Chief Justice.

The plaintiff, Frank E. Caswell, commenced an action for declaratory relief and for relief in the nature of certiorari against the defendant, the licensing commission for the city of Brockton (commission). Caswell's complaint sought review of the commission's denial, under G.L. c. 140, § 177A, ¹ of Caswell's application for licenses for seventy-five coin-operated electronic amusement games, commonly known as video games. After a hearing, a Superior Court judge denied a motion by Caswell for summary judgment and granted the commission's motion for summary judgment. Judgment was entered, without opinion, dismissing Caswell's complaint. Caswell then filed his appeal.

Caswell contends that G.L. c. 140, § 177A, is unconstitutional under the United States and Massachusetts Constitutions both on its face because it is impermissibly vague and as applied because it violates rights to free expression and association. ² Caswell also asserts that, aside from the constitutional issues, the commission incorrectly interpreted the standard for denying a license application and that the evidence presented in this case is insufficient as a matter of law to support a denial of Caswell's application. We disagree with Caswell's constitutional arguments but conclude that the commission may have incorrectly interpreted and applied G.L. c. 140, § 177A.

The judge, in ruling upon the motions for summary judgment, had before him for consideration the entire record of the proceedings before the commission as well as supplementary affidavits. We summarize pertinent facts immediately below and in subsequent parts of this opinion.

In 1981, Caswell, a resident of Brockton and the owner of a local restaurant, sought to enter the business of operating an entertainment center featuring coin-operated video games. To this end, Caswell leased premises in a free-standing building adjacent to the Westgate Mall shopping area in Brockton. In April, 1981, he filed with the commission applications for licenses for seventy-five video games. At a public hearing, Caswell presented a comprehensive plan for the design, maintenance, and operation of his video game entertainment center. The plans called for carpeting and acoustical ceilings to minimize noise. The interior would be decorated with plants and the exterior would be finished and landscaped. The following rules would be posted at the center and strictly enforced: no smoking, eating, drinking, or loitering, and no school age children admitted during school hours. To prevent loitering, Caswell's premises would have no seats. To ensure that the rules would be enforced and to control crowds, Caswell proposed to keep at least four people on duty at the center at any given time. Furthermore, at least one employee would patrol the parking area. Caswell planned to hire an off-duty police officer to patrol the parking area; he also agreed to contribute toward the cost of the security forces at the nearby Westgate Mall.

At the hearing, the commission considered written and telephone communication from community members and officials. The commission also heard testimony from a city councillor, an attorney representing the owners of the Westgate Mall, and a lieutenant of the Brockton police department. These people voiced opposition to the granting of the licenses. Various concerns with the arcade were expressed, including the adverse impact the proposed video center might have on an existing problem of youths congregating in the Westgate Mall area and on the high school's absentee rate. Concern was also expressed that patrons of Caswell's entertainment center would park in the Westgate Mall's shopping area and would cross a dangerous street to go to the arcade. The commission stated at Caswell's hearing that no policy exists against licensing video games or arcades. In July, 1981, the commission denied Caswell's applications, stating that the decision "was based on the opinion of the members that an arcade at this location would not be in the best interests of the City of Brockton." The commission cited "the proximity of Westgate Mall and the public safety problems which might arise therefrom" as particular concerns supporting the denial.

1. Caswell argues that G.L. c. 140, § 177A, on its face and as applied by the commission, violates fundamental rights of free expression under the United States and Massachusetts Constitutions. A dispositive threshold issue is whether the video game entertainment that Caswell sought to present is expression entitled to constitutional protection. ^{3 3} The First Amendment protects the communication or expression of ideas or information. See Cohen v. California, 403 U.S. 15, 25-26, 91 S.Ct. 1780, 1788, 29 L.Ed.2d 284 (1971). Entertainment may come within the ambit of the First Amendment, but to gain protected status, that entertainment must be designed to communicate or express some idea or some information. See Schad v. Mount Ephraim, 452 U.S. 61, 65, 101 S.Ct. 2176, 2181, 68 L.Ed.2d 671 (1981) (nude dancing); Doran v. Salem Inn, Inc., 422 U.S. 922, 932-933, 95 S.Ct. 2561, 2568, 45 L.Ed.2d 648 (1975) (nude dancing); Erznoznik v. Jacksonville, 422 U.S. 205, 208-210, 95 S.Ct. 2268, 2272-73, 45 L.Ed.2d 125 (1975) (drive-in movies); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 556-558, 95 S.Ct. 1239, 1245-46, 43 L.Ed.2d 448 (1975) (stage musicals); Schacht v. United States, 398 U.S. 58, 62-63, 90 S.Ct. 1555, 1558-59, 26 L.Ed.2d 44 (1970) (theatrical skit conducted on the street). The Supreme Court of California has suggested standards to be applied in determining which types of entertainment and amusement may be entitled to First Amendment protection. That court stated: "[N]o case has ever held or suggested that simple physical activity falls within the ambit of the First Amendment, at least in the absence of some element of communicating or advancing ideas or beliefs.... '[A]ll forms of communication, not merely the expression of concrete and definite ideas, potentially receive First Amendment protection.' ... The key element is, of course, communication" (emphasis in original) (citation omitted). Sunset Amusement Co. v. Board of Police Comm'rs of Los Angeles, 7 Cal.3d 64, 74, 101 Cal.Rptr. 768, 496 P.2d 840 (1972), appeal dismissed, 409 U.S. 1121, 93 S.Ct. 940, 34 L.Ed.2d 254 (1973), quoting In re Giannini, 69 Cal.2d 563, 569, 72 Cal.Rptr. 655, 446 P.2d 535 (1968), cert. denied, 395 U.S. 910, 89 S.Ct. 1743, 23 L.Ed.2d 223 (1969), overruled in part on other grounds in Crownover v. Musick, 9 Cal.3d 405, 424-428, 431, 107 Cal.Rptr. 681, 509 P.2d 497 (1973), cert. denied sub nom. Owen v. Musick, 415 U.S. 931, 94 S.Ct. 1443, 39 L.Ed.2d 489 (1974). Under this standard, the court concluded that the physical activity of roller skating in a public roller skating rink was not protected speech because, although some expression might be involved, the patrons of the skating rink "primarily use the facilities for physical exercise and personal pleasure." Sunset, supra. The court noted that a nonobscene dance for an audience was protected because of the element of communication between the artist or performer and an audience. Id., citing Giannini, supra 69 Cal.2d at 567-572, 72 Cal.Rptr. 655, 446 P.2d 535. See also Commonwealth v. Blackgammon's, Inc., 382 Mass. 610, --- Mass.Adv.Sh. (1981) 445, 457, 417 N.E.2d 377 (recreational dancing is "not to the same extent [a form] of expression protected by the First Amendment ... [because recreational dancing] is not that of a performer, paid or otherwise, whose performance is presented for the entertainment of the public").

In this case it is clear that video games contain an element of physical activity. Indeed, an affidavit presented on behalf of Caswell states that "[s]uccessful play on these video games depends on the player's eye-hand coordination, reflexes, muscular control, concentration, practice, and on the player's understanding of the rules of play" (emphasis supplied). Nevertheless, Caswell argues that video games are deserving of First Amendment protection because they do contain communicative and expressive elements, analogous to motion picture and television entertainment. See Oltmann v. Palos Hills, No. 82 CH 3568, slip op. at 13-14 (Ill.Cir.Ct., Aug. 20, 1982) (trial judge determined that, since video games are similar to movies, they deserve First Amendment protection); Gameways, Inc. v. McGuire, N.Y.L.J., May 27, 1982, at 6, col. 2 (N.Y.Sup.Ct. May 3, 1982) (In ruling on motion for preliminary injunction, trial judge stated: "Considering the fact that other forms of expression no more 'informative' than video games--viewing nude dancing through a coin operated mechanism--have been recognized as constitutionally protected and the elusive line between informing and entertaining, this court concludes video games are a form of speech protected by the First Amendment"). Cf. Stern Elecs., Inc. v. Kaufman, 523 F.Supp. 635, 639 (E.D.N.Y.1981) ("In essence, the [video game] is a movie in which the viewer participates in the action as the fearless pilot controlling the spaceship"), aff'd, 669 F.2d 852, 853-854, 856-857 (2d Cir.1982). But see America's Best Family Showplace Corp. v. City of N.Y., 536 F.Supp. 170, 173-174 (E.D.N.Y.1982) (...