Rock Against Racism v. Ward, No. 765

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtBefore FEINBERG, Chief Judge, PRATT, Circuit Judge, and DORSEY; DORSEY
Citation848 F.2d 367
PartiesROCK AGAINST RACISM, Plaintiff-Appellant, v. Benjamin R. WARD, in his official capacity as Police Commissioner for the City of New York; George Scarpelli, in his official capacity as Chief of Operations for Department of Parks; Sheldon Horowitz, in his official capacity as Special Events Director for the Department of Parks; Robert Russo, in his official capacity as Assistant Parks Commissioner for Citywide Services, New York City Department of Parks and Recreation; Joseph Killian, in his official capacity as Program Director for the Mall Bandshell of the Bethesda Terrace area of Central Park in the City of New York, Department of Parks and Recreation; Mayor Edward Koch, in his official capacity as the Mayor of the City of New York; and the City of New York, Defendants-Appellees. ocket 87-7417.
Decision Date02 June 1988
Docket NumberNo. 765,D

Page 367

848 F.2d 367
56 USLW 2709
ROCK AGAINST RACISM, Plaintiff-Appellant,
v.
Benjamin R. WARD, in his official capacity as Police
Commissioner for the City of New York; George Scarpelli, in
his official capacity as Chief of Operations for Department
of Parks; Sheldon Horowitz, in his official capacity as
Special Events Director for the Department of Parks; Robert
Russo, in his official capacity as Assistant Parks
Commissioner for Citywide Services, New York City Department
of Parks and Recreation; Joseph Killian, in his official
capacity as Program Director for the Mall Bandshell of the
Bethesda Terrace area of Central Park in the City of New
York, Department of Parks and Recreation; Mayor Edward
Koch, in his official capacity as the Mayor of the City of
New York; and the City of New York, Defendants-Appellees.
No. 765, Docket 87-7417.
United States Court of Appeals,
Second Circuit.
Submitted Feb. 25, 1988.
Decided June 2, 1988.

Page 368

James H. Fosbinder, Tucson, Ariz. (Julie Fosbinder, of counsel), for plaintiff-appellant.

Peter L. Zimroth (Corp. Counsel for City of New York, Larry A. Sonnenshein, Julian L. Kalkstein, New York City, of counsel), for defendants-appellees.

Before FEINBERG, Chief Judge, PRATT, Circuit Judge, and DORSEY, District Judge. *

DORSEY, District Judge.

This appeal presents a question of balancing a first amendment right against a municipality's exercise of its police powers.

Facts

The Naumberg Bandshell is an open air public amphitheater on the west side of Central Park in the City of New York. Appellant, Rock Against Racism ("RAR"), is "an unincorporated association which describes itself as 'dedicated to the espousal and promotion of antiracist views.' " Rock Against Racism v. Ward, 658 F.Supp. 1346, 1348 (S.D.N.Y.1987). Appellees are the city, its Mayor, police and park officials. All individuals are sued in their official capacities only.

Since 1979, RAR has sponsored, at the bandshell, an annual program of speakers representing groups opposed to racism, interspersed with musical groups. The city requires a permit for such use. In March 1986, after litigation between the city and RAR over the latter's attempts to obtain permits for the bandshell, the city's Department of Parks issued "Use Guidelines" to govern the granting of permits for and the staging of events at the bandshell. Sponsors must comply with the guidelines to obtain permits. Appellant brought suit challenging the guidelines as facially invalid as a prior restraint on activity protected by the first amendment. Judge Haight, after a five-day trial, permanently enjoined enforcement of some of the guidelines, but declined to enjoin the Sound Amplification Guideline ("SAG") at issue in this appeal. Rock Against Racism, 658 F.Supp. at 1360-61. The court later amended and clarified the injunction in an unpublished memorandum opinion and order in respects not relevant here. Memorandum Opinion and Order, No. 85 Civ. 3000-CSH (S.D.N.Y. Apr. 30, 1987) ("Memorandum"). Appellant challenges these rulings only to the extent of the court's failure to enjoin enforcement of the SAG.

Under the SAG, all sponsors of events at the bandshell must use a sound system and sound engineer supplied by the city, and no other equipment. 1 The city contracts with

Page 369

a private firm which supplies a sound system and technician approved by the city for each event. Thus, the volume, the sound "mix," and the overall sound quality are under the physical control of the city-supplied technician who answers to officials of the Department of Parks. During the musical program, this sound engineer presides at a "mixing board" which controls inputs (sound levels, bass, treble, etc.) from each instrument, performer, or microphone. By varying the sound mix, the sound engineer can control what the audience hears over the speaker system, including both the volume and the aesthetic result or sound quality. The district court found that the city's practice is to allow the sponsor to designate a representative to direct the city's engineer in controlling the sound mix while the city's park officials direct the engineer's control of the volume. 2

The net effect of the trial court's orders, as they are challenged in this appeal, is that the SAG was found to be lawful to the extent that it requires use of a city-provided sound system and city-employed technician to operate it subject to the direction of a representative of the musical performers as to the sound mix, but also subject to the city employee's sole determination when the volume level is excessive. RAR's appeal claims that the SAG, as thus enforced, violates its first amendment right of free expression and must be invalidated. Appellees contend that the SAG, as construed by the district court, is a proper exercise of police power.

Discussion

There is no dispute but that the bandshell, a place traditionally "used for the purposes of assembly, communicating thoughts between citizens, and discussing public questions," is a public forum. Hague v. Committee For Industrial Organization, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939) (opinion of Roberts, J.); Wolin v. Port of New York Authority, 392 F.2d 83, 88 (2d Cir.), cert. denied, 393 U.S. 940, 89 S.Ct. 290, 21 L.Ed.2d 275 (1968). As such, the city's regulation of the bandshell's use is subject to the first amendment's limitations on government action which infringes upon the freedom of expression. "In such places, the government's ability to permissibly restrict expressive conduct is very limited." United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 1707, 75 L.Ed.2d 736 (1983). This protection extends to the production and transmission of musical performances, as well as speech. See Cinevision Corp. v. City of Burbank, 745 F.2d 560, 567 (9th Cir.1984), cert. denied, 471 U.S. 1054, 105 S.Ct. 2115, 85 L.Ed.2d 480 (1985); Davenport v. City of Alexandria, 710 F.2d 148, 150 n. 6 (4th Cir.1983) (en banc); Goldstein v. Town of Nantucket, 477 F.Supp. 606, 608 (D.Mass.1979); see also Tele-Communications of Key West, Inc. v. United States, 757 F.2d 1330, 1337 (D.C.Cir.1985) (packaging and transmitting television programs, even without original production, protected by first amendment).

Under certain circumstances, the city has the right to regulate expressive conduct which has harmful effects on others. See Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 804, 104 S.Ct. 2118, 2128, 80 L.Ed.2d 772 (1984); see also City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50, 106...

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9 practice notes
  • Ward v. Rock Against Racism, No. 88-226
    • United States
    • United States Supreme Court
    • June 22, 1989
    ...speech is of no consequence, since there has been no showing that the remaining avenues of communication are inadequate. Pp. 802-803. 848 F.2d 367 (CA2 1988), reversed. KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, and SCALIA, JJ., joined. B......
  • Coe v. Town of Blooming Grove, No. 06 Civ. 8149 (WCC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 7, 2008
    ...Parks Department's administration is fatal to this aspect of the Guidelines, which is facially invalid."), rev'd in part on other grounds, 848 F.2d 367 (2d Cir.1988); cf. Paulsen v. Gotbaum, 1992 WL 8361, at *7-8, 1992 U.S. Dist. LEXIS 396, at *21-22 (S.D.N.Y. Jan. 15, B. The Town Insurance......
  • Million Youth March, Inc. v. Safir, No. 98 CIV. 5946(LAK).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 4, 1998
    ...in the Guidelines is narrowly tailored to further a legitimate state purpose."), aff'd in part and rev'd in part on other grounds, 848 F.2d 367 (2d Cir.1988), rev'd on other grounds, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989); see also Cincinnati v. Discovery Network, Inc., 507 U.......
  • Century Federal, Inc. v. City of Palo Alto, No. C-85-2168 EFL.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • October 12, 1988
    ...Inc. v. City of Houston, 57 U.S.L.W. 3001 (U.S. June 10, 1988) (No. 87-2052). Compare also, e.g., Rock Against Racism v. Ward, 848 F.2d 367, 370 (2d Cir. 1988), cert. granted, ___ U.S. ___, 109 S.Ct. 53, 102 L.Ed.2d 31; Rosenfeld v. Ketter, 820 F.2d 38, 41 (2d Cir.1987); Kev, Inc. v. Kitsap......
  • Request a trial to view additional results
9 cases
  • Ward v. Rock Against Racism, No. 88-226
    • United States
    • United States Supreme Court
    • June 22, 1989
    ...speech is of no consequence, since there has been no showing that the remaining avenues of communication are inadequate. Pp. 802-803. 848 F.2d 367 (CA2 1988), reversed. KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, and SCALIA, JJ., joined. B......
  • Coe v. Town of Blooming Grove, No. 06 Civ. 8149 (WCC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 7, 2008
    ...Parks Department's administration is fatal to this aspect of the Guidelines, which is facially invalid."), rev'd in part on other grounds, 848 F.2d 367 (2d Cir.1988); cf. Paulsen v. Gotbaum, 1992 WL 8361, at *7-8, 1992 U.S. Dist. LEXIS 396, at *21-22 (S.D.N.Y. Jan. 15, B. The Town Insurance......
  • Million Youth March, Inc. v. Safir, No. 98 CIV. 5946(LAK).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 4, 1998
    ...in the Guidelines is narrowly tailored to further a legitimate state purpose."), aff'd in part and rev'd in part on other grounds, 848 F.2d 367 (2d Cir.1988), rev'd on other grounds, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989); see also Cincinnati v. Discovery Network, Inc., 507 U.......
  • Century Federal, Inc. v. City of Palo Alto, No. C-85-2168 EFL.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • October 12, 1988
    ...Inc. v. City of Houston, 57 U.S.L.W. 3001 (U.S. June 10, 1988) (No. 87-2052). Compare also, e.g., Rock Against Racism v. Ward, 848 F.2d 367, 370 (2d Cir. 1988), cert. granted, ___ U.S. ___, 109 S.Ct. 53, 102 L.Ed.2d 31; Rosenfeld v. Ketter, 820 F.2d 38, 41 (2d Cir.1987); Kev, Inc. v. Kitsap......
  • Request a trial to view additional results

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