D'AMARIO v. Providence Civic Center

• Decision Date: 30 July 1986
• Docket Number: Civ. A. No. 83-0336-S.
• Citation: 639 F. Supp. 1538
• Parties: Arthur D'AMARIO, III, Plaintiff, v. The PROVIDENCE CIVIC CENTER AUTHORITY, et al., Defendants.
• Court: U.S. District Court — District of Rhode Island

639 F. Supp. 1538

Arthur D'AMARIO, III, Plaintiff, v. The PROVIDENCE CIVIC CENTER AUTHORITY, et al., Defendants.

Civ. A. No. 83-0336-S.

United States District Court, D. Rhode Island.

July 30, 1986.

John H. Hines, Jr., Smithfield, R.I., Stephen M. Miller, Providence, R.I., for plaintiff.

Patricia Hurst, Anthony A. Giannini, Jr., Deputy City Solicitor, Vincent J. Piccirilli, Providence, R.I., for defendant Civic Center.

Boyajian, Coleman & Richardson John Boyajian, Andrew S. Richardson, Providence, R.I., for defendant Frank J. Russo Productions and Gemini Concerts, Inc.

OPINION AND ORDER

SELYA, District Judge.

In May of 1983, the plaintiff, Arthur D'Amario, III (D'Amario), commenced this civil action against the Providence Civic Center Authority (PROCCA), Gemini Concerts, Inc. (Gemini), and Frank J. Russo (Russo). D'Amario sued under 42 U.S.C. § 1983, invoking the court's federal question jurisdiction. 28 U.S.C. §§ 1331, 1343(3). He demanded declaratory and injunctive relief, together with money damages.

DRAMATIS PERSONAE

The identity and role of each of the parties to this litigation is of some moment. The leading man — whether hero or villain remains in dispute — is the plaintiff. D'Amario is a freelance commercial photojournalist who describes himself as a "rock photographer." His customary subjects are live musical performances and performing artists, invariably those associated with some variety of so-called "rock" music. (The record admits of no fine distinctions among the subcultures of the art form; the plaintiff's roving lens apparently encompasses the entire spectrum, from soft rock through hard rock and into acid rock.) When D'Amario films a performer or an event, he consigns his work product to a commercial agency, which in turn hawks the snapshots to entertainment-oriented publications. In general, the photos (if and when purchased) are published as accounterments to print media articles.

PROCCA is a public authority created by the Rhode Island General Assembly, see R.I.Pub. Laws 1969, ch. 3, §§ 1-26, and thereafter specifically authorized by the Home Rule Charter of the City of Providence, adopted as of January 1, 1983. PROCCA is governed by seven members, five appointed by the mayor of Providence and two elected by the city council from within its own ranks. Originally funded by the issuance of municipal bonds, see R.I. Pub. Laws 1969, ch. 3, § 13, PROCCA also receives direct appropriations from city revenues on an ongoing basis. Id. at § 12.

The chief — indeed, sole — raison d'etre for PROCCA's present existence is the operation of the Providence Civic Center (Center). The Center is a substantial facility in downtown Providence, originally constructed under PROCCA's aegis. Id. at § 3. Under the enabling legislation, title to the Center will revert to the city when all bonds and notes have been fully amortized. Id. at § 23. PROCCA derives the bulk of its current revenues by leasing the Center to various groups for shows, exhibitions, assemblies, conventions, and a variety of kindred functions.

Gemini is a Rhode Island corporation engaged in the business of promoting entertainment events. Russo, the sole officer and shareholder of Gemini, is the corporation's driving force and alter ego. Gemini frequently books acts and events at the Center, leasing the facilities from PROCCA.

Certain better-known personalities, not themselves parties to this litigation, play cameo roles in the drama. They comprise the performing artists — Sheena Easton, Diana Ross, "Blondie," John Cougar, Pat Benatar — whose rock concerts set the stage for the events at issue.

PROLOGUE

The gravamen of D'Amario's suit is the contention, framed in his amended complaint, that the defendants transgressed the freedom of the press and the plaintiff's rights of free speech, as guaranteed by the first amendment to the federal Constitution, by prohibiting him from taking natural light photographs during certain performances at the Center. On February 28, 1984, this court (Pettine, J.) granted summary judgment in favor of the defendants on the ground that PROCCA's enforcement of the "no camera" rule in the circumstances of this case, see post, did not constitute "state action" sufficient to trigger the applicable protections of the Constitution.¹ A divided panel of the First Circuit reversed, holding that "the enforcement of the `no camera' rule by the Civic Center employees supplies the state involvement nexus." D'Amario v. Providence Civic Center Authority, 783 F.2d 1, 3 (1st Cir.1986) (emphasis in original) (D'Amario I). The court of appeals remanded for consideration of the validity of the "no camera" rule. Id. at 4.

On remand, the case was assigned to a new trier. See D.R.I.L.R. 7(g). The determination of state action in D'Amario I being the law of the case, this court held a series of conferences and hearings in order to furnish appropriate direction for further proceedings. To abbreviate a somewhat tedious tale, the court bifurcated the issues of liability and damages; and the parties agreed to submit the merits for the court's consideration on a stipulated record as a case stated. The matter was thereafter amplificatively briefed. Oral argument was waived. The liability phase, that is, the validity of the "no camera" rule as a matter of federal constitutional law, was taken under advisement as of July 7, 1986. The court's review, fashioned pursuant to Fed.R.Civ.P. 52(a), follows.

ACT I

The First Circuit has set forth twin overviews of the salient facts, each written from a slightly different appellate perspective, see D'Amario I, 783 F.2d at 1-2; id. at 4-5 (Hill, J., dissenting), and the stipulated record now before this court is generally faithful to those accounts. So, a decurtate summary of the setting will suffice.

In the second half of 1982, Gemini promoted five rock concerts at the Center under a "no camera" rule. In each instance, Gemini entered into a contract with the performing artist for the engagement. Each performer insisted that there be no photographs taken during the show and each insisted that a rider to that effect be placed in the contract.² Gemini was not the instigator of the ban in any case; to the contrary, the performers insisted upon it, and advised Russo that the condition was "non-negotiable." Gemini hastens to note (and the plaintiff agrees) that it routinely allows photographs to be taken during any and all concerts except those for which the headliner has demanded a "no camera" restriction.

In order to provide a forum for the performances on these five occasions, Gemini entered into one-night leases with PROCCA. The basic document was PROCCA's standard indenture — a form which contains no ban on showtime photography. (In cases where the artist's contract with the lessee/promoter was silent as to the taking of photographs, PROCCA regularly permitted cameras to be used during performances.) In respect to these five concerts, however, Gemini requested the Center to honor the wishes of the performers and to bar photographic equipment from the building. The Center, as was its custom in such instances, acquiesced.³ It posted signage to this effect, and alerted its employees to enforce the "no camera" rule throughout each of these shows. The Center's security staff obliged.

D'Amario had a variety of negative experiences with the "no camera" rule. During his first exposure, he gained access to the premises, took a number of snapshots, and was thereafter expelled by PROCCA's personnel. (His film was not confiscated.) On two subsequent dates, he was refused admission because he wanted to bring photographic equipment with him. On a fourth occasion, he was allowed to attend the concert but, on threat of banishment, did not film any of the proceedings. At the time of the fifth concert, he was caught trying to smuggle a camera into the Center and was immediately ejected.

ACT II

In the plaintiff's view, the first amendment is his free pass into the Center to permit his photographic endeavors to proceed. Any cognizable claim in this regard must, however, prescind from his membership in the fourth estate, invoking the freedom of the press: D'Amario's first amendment right to freedom of speech is not directly implicated.

To be sure, entertainment is a form of protected speech, see Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65, 101 S.Ct. 2176, 2180-81, 68 L.Ed.2d 671 (1981), and the right to disseminate or display photographs is likewise protected. E.g., United States v. Thirty-Seven Photographs, 402 U.S. 363, 367, 91 S.Ct. 1400, 1403-04, 28 L.Ed.2d 822 (1971). The mere fact that the purveyor seeks to make a profit does not strip away the armor of the first amendment. See First National Bank of Boston v. Bellotti, 435 U.S. 765, 783, 98 S.Ct. 1407, 1419, 55 L.Ed.2d 707 (1978). Yet, D'Amario does not claim that the sovereign has abridged his right to sell tintypes or to entertain his readership with whatever photographs he may have secured, or that his films have been censored or suppressed. At bottom, he asserts that PROCCA has restricted his conduct, thereby limiting his access to the materials which he desires to record photographically. In this context, a court must readily distinguish between expression and action, for only the former is entitled to first amendment protection under the Freedom of Speech Clause. See, e.g., Lovelace v. Southeastern Massachusetts University, 793 F.2d 419, 425 (1st Cir.1986).

The activity in which D'Amario seeks to engage does not partake of the attributes of expression; it is conduct, pure and simple. This is not a case where the plaintiff desires to "express" himself by displaying the existing fruits of his photographic endeavors, cf. Jacobellis v. Ohio, 378 U.S. 184, 195, 84 S.Ct. 1676, 1682, 12 L.Ed.2d 793 (1964) (exhibition of arguably pornographic films protected by first amendment); rather, D'Amario wishes to "do" something, namely, to enter...