Goldstein v. Town of Nantucket

• Citation: 477 F. Supp. 606
• Decision Date: 25 September 1979
• Docket Number: Civ. A. No. 79-1455-Z.
• Parties: Robert GOLDSTEIN v. TOWN OF NANTUCKET et al.
• Court: U.S. District Court — District of Massachusetts

477 F. Supp. 606

Robert GOLDSTEIN v. TOWN OF NANTUCKET et al.

Civ. A. No. 79-1455-Z.

United States District Court, D. Massachusetts.

September 25, 1979.

John Reinstein, Mass. Civil Liberties Union Foundation, Boston, Mass., for Robert Goldstein.

Charles A. Goglia, Jr., King, Goglia, Kellogg & Gardner, Wellesley, Mass., for the Town of Nantucket.

MEMORANDUM OF DECISION

ZOBEL, District Judge.

Plaintiff is a professional musician who is known as the "Troubadour of Nantucket". He brought this action for declaratory and injunctive relief, alleging that enforcement by the Town of Nantucket of its Transient Vendor Bylaw deprives him of rights secured by the First Amendment. The bylaw, as applied to plaintiff, is constitutionally deficient.

The relevant facts are not in dispute. Plaintiff has for many years studied and performed the traditional music of Nantucket and is an acknowledged authority on the music and folklore of the island. He plays a number of instruments from the hammer dulcimer to the fife and banjo and he sings. He has performed the music of Nantucket at numerous festivals and in concert but prefers to perform in the tradition of balladeers, on the street. When he performs in Nantucket, he customarily plays the hammer dulcimer and sings, and positions his open dulcimer case so that passersby may contribute donations, and some do. On a number of occasions during the past four years plaintiff attempted to play his music in the streets of Nantucket but was prevented by town officials from doing so. In 1975, he applied to the town for permission to perform, and his petition was denied. In 1978 he again applied and was granted a "conditional permit" for a period of two weeks. The permit specified locations and times at which plaintiff could perform. At the end of the two-week period the Police Chief reported to the Board of Selectmen that there had been "no problems". The Board then advised plaintiff that the new Transient Vendor Bylaw did apply to him and that he would have to obtain a permit before he would "be allowed to proceed further with the playing of . . . his . . . music." The bylaw defines "Transient Vendors" to include "any person who engages in a transient or temporary business . . . selling . . . offering for sale or accepting contributions for the offering . . . or providing . . . entertainment." It sets forth the standards for deciding whether a permit may issue. Plaintiff attacks these standards and argues that in light of the First Amendment they include impermissible criteria for regulation of free expression.

By its terms, the First Amendment forbids infringement of the right of free "speech." The Constitutional protection of free speech,¹ moreover, applies broadly to various forms of expression, literary, artistic, political, and scientific. Miller v. California, 413 U.S. 15, 22-3, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), rehearing denied 414 U.S. 881, 94 S.Ct. 26, 38 L.Ed.2d 128 (1973). See also, Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557-8, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975) (the musical "Hair"), Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503, 72 S.Ct. 777, 96 L.Ed. 1098 (1952) (the motion picture "The Miracle"). The substance and not merely a method of expression is protected by the First Amendment:

While Each medium of expression, of course, must be assessed for First Amendment purposes by standards suited to it, . . . `the basic principles of freedom of speech and the press, like the First Amendment's command, do not vary. Those principles, as they have frequently been enunciated by this Court, make freedom of expression the rule.' Southeastern Promotions, Ltd. v. Conrad, supra, 420 U.S. at 557-8, 95 S.Ct. at 1246, quoting Joseph Burstyn, Inc. v. Wilson, supra, 343 U.S. at 503, 72 S.Ct. 777.

Accordingly, plaintiff's public performance of Nantucket's traditional folk music is clearly within the scope of protected First Amendment expression.

The Constitutional guarantee, however, does not confer absolute protection from government regulation of public expression. States may impose reasonable and impartial regulations upon the time, place and manner of public expression. Schneider v. State of New Jersey, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939). But "streets, sidewalks, parks, and other similar public places are . . . historically associated with the exercise of First Amendment rights . . ." Amal. Food Emp. U. Loc. 590 v. Logan Val. Plaza, 391 U.S. 308, 315, 88 S.Ct. 1601, 1607, 20 L.Ed.2d 603 (1968), and "the Supreme Court has consistently condemned licensing systems which vest in an administrative official discretion to grant or withhold a permit upon broad criteria unrelated to proper regulation of public places." Shuttlesworth v. City of Birmingham, 394 U.S. 147, 153, 89 S.Ct. 935, 940, 22 L.Ed.2d 162 (1969) (citations omitted). In Shuttlesworth v. City of Birmingham, the court recalled thirty years of prior First Amendment decisions and concluded "a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional." Id., 394 U.S. at 150-1, 89 S.Ct. at 938. (citations omitted)

Nantucket's bylaw subjects entertainers, including plaintiff, to the same licensing requirements as apply to transient merchants and vendors. A permit may not issue without a finding by the Board of Selectmen that issuance "would be beneficial to the best interests of the Town of Nantucket and its inhabitants." In making its determination, the Board of Selectmen are, by the terms of the bylaw, required to consider the "financial responsibility" of the entertainer, the "effect of the entertainment on the neighborhood properties", and the interests of public order and safety. As a matter of practice, they also take into consideration the wishes of the merchants in the shopping area. Because three of the licensing criteria—financial responsibility of the applicant, effect on neighboring properties, and the opinion of town merchants —are neither narrow, objective nor definite standards, and because those criteria exceed in their scope constitutionally permissible grounds for regulating free expression, the bylaw does not pass constitutional muster. As applied to plaintiff, whose contemplated activity...