Cinevision Corp. v. City of Burbank
Decision Date | 18 October 1984 |
Docket Number | Nos. 83-5606,83-5949 and 83-6154,83-5730,s. 83-5606 |
Citation | 745 F.2d 560 |
Parties | CINEVISION CORPORATION, a corporation, Plaintiff, Wolf and Rissmiller Concerts, a corporation, Plaintiff-Appellant, v. CITY OF BURBANK, a Municipal Corporation of the State of California, and Jim Richman, Defendants-Appellees. CINEVISION CORPORATION, a corporation, and Wolf and Rissmiller Concerts, a corporation, Plaintiffs-Appellees, v. CITY OF BURBANK, a Municipal Corporation of the State of California and Jim Richman, Defendants-Appellants. CINEVISION CORPORATION, a corporation, and Wolf and Rissmiller Concerts, a corporation, Plaintiffs-Appellees, v. CITY OF BURBANK, a Municipal Corporation of the State of California and Jim Richman, Defendants-Appellants. CINEVISION CORPORATION, a corporation, Plaintiff, Wolf and Rissmiller Concerts, a corporation, Plaintiff-Appellant, v. CITY OF BURBANK, a Municipal Corporation of the State of California, and Jim Richman, Defendants-Appellees. |
Court | U.S. Court of Appeals — Ninth Circuit |
Bert Deixler, John W. Cochrane, Manatt, Phelps, Rothenberg & Tunney, Los Angeles, Cal, for plaintiffs-appellees.
William B. Rudell, City Atty., Douglas Holland, Asst. City Atty., City of Burbank, Anthony Liebig, Timm A. Miller, Lillick McHose & Charles, Los Angeles, Cal, for defendants-appellants.
Appeal from the United States District Court for the Central District of California.
Before SNEED and REINHARDT, Circuit Judges, and EAST, * District Judge.
Cinevision Corporation entered into a contract with the City of Burbank to promote concerts in a municipally-owned amphitheater. Ostensibly acting pursuant to the terms of the contract, the Burbank City Council rejected six of Cinevision's proposed concerts. Cinevision filed an action under 42 U.S.C. Sec. 1983 (1982) against the City and a member of the City Council alleging that the entertainers were denied access to a public forum in violation of the first amendment on the basis of the content of their expression and other arbitrary factors. A jury concluded that the City and the councilman had violated Cinevision's first amendment rights and awarded compensatory damages. In addition, the jury determined that the councilman had acted in bad faith and therefore was liable for damages. The district court awarded Cinevision attorney's fees. We affirm.
Cinevision will provide the City with a schedule of shows and performances which it proposes to present in the Starlight Bowl during that year's period, including a description of the nature and content of each show or performance and the names of the participants. The City shall have the right to disapprove and cancel any show or performance which has the potential of creating a public nuisance or which would violate any State law or City ordinance. Cinevision shall have the right to meet and confer with the City Council regarding the disapproval and cancellation of any of its scheduled shows and performances, but the decision of the City Council shall be final and conclusive. (emphasis added).
With the City Council's approval, Cinevision presented a number of concerts in the Starlight Bowl during the summers of 1975 and 1976. As an outspoken opponent of the concerts in the Bowl, James Richman was elected to the Council in 1977. Councilman Richman opposed all of Cinevision's proposed concerts in 1977 and 1978. Despite that opposition, Cinevision still was able to gain the Council's approval for some concerts for the 1977 and 1978 seasons.
Cinevision proposed concerts by eight artists for the summer of 1979. Several council members, including Richman, objected to the proposals. The most frequently voiced objections were that the artists played "hard rock" music and would attract narcotics users to the community. As he did in 1977 and 1978, Councilman Richman argued strongly against approving any of the proposed concerts. After much debate, the City Council rejected all but two of the concerts. 1
Cinevision filed an action under 42 U.S.C. Sec. 1983 claiming that the City's and Councilman Richman's actions violated its first amendment rights. 2 The jury, instructed that the first amendment protected Cinevision against arbitrary, content-based rejection of the entertainers, returned a verdict in favor of Cinevision. The jury found that: (1) the City and Richman had violated Cinevision's first amendment rights and were jointly and severally liable to Cinevision for $20,000 in compensatory damages; and (2) because "[t]he deprivation of the freedom of expression of Cinevision Corporation by James Richman was the result of willful, wanton, malicious or oppressive conduct by James Richman," he was liable for $5,000 in punitive damages. In addition, as authorized by 42 U.S.C. Sec. 1988 (1982), the district court ordered the defendants to pay Cinevision $119,288 in attorney's fees.
The district court exercised jurisdiction under 28 U.S.C. Sec. 1331 (1982), because plaintiff's claims raise federal questions, and under 28 U.S.C. Sec. 1343(a)(3) (1982), because plaintiff alleges civil rights violations under 42 U.S.C. Sec. 1983 (1982). We exercise jurisdiction over the district court's final decision under 28 U.S.C. Sec. 1291 (1982).
The City of Burbank challenges the finding that it violated Cinevision's first amendment rights, on several grounds. First, the City contends that Cinevision does not have a protected first amendment right to promote concerts. Second, the City claims that the Starlight Bowl is not a public forum and therefore it is not limited by the first amendment in regulating access to the Bowl. 3 Finally, the City argues that its actions in disapproving proposed concerts were in any event consistent with the Constitution. In resolving these complex issues, we recognize that "[t]he First Amendment, as with other parts of the Constitution, must deal with new problems in a changing world." Board of Education, (Island Trees) v. Pico, 457 U.S. 853, 885, 102 S.Ct. 2799, 2817, 73 L.Ed.2d 435 (1982) (Burger, C.J., dissenting).
The City alleges that Cinevision did not have any first amendment rights that were implicated here. On this basis, the City argues that the district court's instructions to the jury created a "brand new" first amendment right to promote concerts. 4 We disagree.
The Supreme Court has consistently held that expression beyond that of pure speech is protected by the first amendment. 5 "Entertainment, as well as political and ideological speech, is protected; motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works, fall within the First Amendment guarantee." Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 65, 101 S.Ct. 2176, 2180, 68 L.Ed.2d 671 (1981) (nude dancing). 6 Other circuits and district courts presented with the issue have held, and we agree, that music is a form of expression that is protected by the first amendment. 7 Therefore, "[i]f the [City Council] passed an ordinance forbidding the playing of rock and roll music ..., they would be infringing a First Amendment right ... even if the music had no political message--even if it had no words--and the defendants would have to produce a strong justification for thus repressing a form of 'speech.' " Reed v. Village of Shorewood, 704 F.2d 943, 950 (7th Cir.1983) (citations omitted).
The City suggests that because Cinevision does not seek to "express" its views, it has no first amendment right to promote concerts for profit. However, even though concert promoters generally promote concerts for profit, they still enjoy the protections of the first amendment. See, e.g., Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02, 72 S.Ct. 777, 780-81 96 L.Ed. 1098 (1952). In fact, promoters of theatrical productions and concerts have previously succeeded in challenging a municipality's denial of access to governmentally owned property. See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975); Fact Concerts, Inc. v. City of Newport, 626 F.2d 1060, 1063 (1st Cir.1980), rev'd on other grounds, 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981). Thus, under the first amendment, there clearly are rights to promote protected expression for profit--including musical expression. As a promoter of protected musical expression, Cinevision enjoys first amendment rights.
There are sound reasons for recognizing the first amendment rights of concert promoters. Allowing a concert promoter to vindicate the rights of persons to engage in musical expression furthers a crucial first amendment value. As Justice Powell has stated,
Our cases reveal ... that the central concern of the First Amendment in this area is that there be a free flow from creator to audience of whatever message a film or a book might convey.... In many instances, ... it is only the theater owner or the bookseller who can protect this interest. But the central First Amendment concern remains the need to maintain free access of the public to the expression.
Young v. American Mini Theatres, Inc., 427 U.S. 50, 77, 96 S.Ct. 2440, 2455, 49 L.Ed.2d 310 (1976) (Powell, J., concurring) (emphasis added).
The same first amendment value--the right of public access to protected expression--is at stake here. See, e.g., Board of Education (Island Trees) v. Pico, 457 U.S. 853, 866-67, 102 S.Ct. 2799, 2807-08, 73 L.Ed.2d 435 (1982) (plurality opinion); Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 1247, 22...
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