Rock Against Racism v. Ward

Decision Date16 April 1987
Docket NumberNo. 85 Civ. 3000-CSH.,85 Civ. 3000-CSH.
Citation658 F. Supp. 1346
PartiesROCK AGAINST RACISM, Plaintiff, v. Benjamin R. WARD, in his official capacity as Police Commissioner of New York; George Scarpelli, in his official capacity as Chief of Operations for Department of Parks; Sheldon Horowitz, in his official 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.
CourtU.S. District Court — Southern District of New York

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Noah A. Kinigstein, New York City, for plaintiff; James Fossbinder, Tuscon, Ariz., of counsel.

Peter L. Zimroth, Corp. Counsel of the City of New York, New York City, for defendants; Jonathan Pines, Lina Liberatore, of counsel.

HAIGHT, District Judge:

The plaintiff in this action, Rock Against Racism ("RAR"), is an unincorporated association which describes itself as "dedicated to the espousal and promotion of antiracist views". Defendants are the City of New York, Edward I. Koch, Mayor of the City of New York, Police Commissioner Benjamin Ward, and four officials of the City's Department of Parks and Recreation (George Scarpelli, Sheldon Horowitz, Joseph Killian and Robert Russo). All individual defendants are sued in their official capacities only. The defendants are sometimes collectively referred to as "the City."

Since 1979, RAR has sponsored a yearly "musical/political event" at the Naumberg Bandshell in Central Park ("the Bandshell"), generally on a weekend in early May. Since 1985, RAR's attempts to obtain official permission to hold their May event have resulted in litigation before this Court.1

While other disputes exist, the main bones of contention have been the City's contention that RAR's amplified sound has been excessively loud and its sponsors conduct generally uncooperative; and RAR's resistance to what it perceives as City interference and obstructionism.

RAR's original complaint, filed on April 18, 1985, sought injunctive relief. The parties settled their differences, at least for the moment, and the May 1985 event was held.

In March 1986 the Department of Parks issued "Use Guidelines" for the Bandshell and, in late April 1986, RAR challenged the application of those guidelines to their May 4, 1986 event. That challenge was brought on by order to show cause before this Court, and on May 1, 1986, having considered the opposing affidavits and heard such testimony as time pressure allowed, I issued a Memorandum Opinion and Order partially granting and partially denying RAR's request for a preliminary injunction.2 Familiarity with that opinion is assumed.

RAR filed an Amended Complaint on November 5, 1986 seeking a declaratory judgment "striking" the challenged regulations and also seeking compensatory and punitive damages. Defendants filed an Answer to the Amended Complaint on November 28, 1986. Following discovery, the Court heard approximately five days of testimony on RAR's claims for a permanent injunction against the Use Guidelines, and for compensatory and punitive damages. I consider the prior proceedings as part of the trial record. Rule 65(a)(2), F.R.Civ.P.

While the Amended Complaint roamed somewhat farther afield, the parties were directed to file pre-trial proposed conclusions of law supported by authority. I limit this opinion to those provisions of the Guidelines attacked in RAR's proposed conclusions.

For the reasons set forth below, I issue a permanent injunction enjoining defendants from applying certain portions of the Use Guidelines, deny an injunction as to others, and deny plaintiff's claims for compensation and punitive damages.

The Use Guidelines

The Use Guidelines ("the Guidelines") challenged by RAR were primarily authored by Joseph Killian, the first Program Director for the Mall, Bandshell, and Bethesda Terrace area of Central Park. Drafting the Guidelines was one of Mr. Killian's first responsibilities in his new job: he was hired in January 1986, and the Guidelines were promulgated under authority of the Commissioner of Parks on March 21, 1986.

The Guidelines are contained in a six page document typed on Parks Department letterhead and captioned "Use Guidelines for The Naumberg Bandshell in Central Park". The Guidelines set out Parks Department policy on twelve subjects: (1) Permits, (2) Hours/Dates of use, (3) Attendance, (4) Sound Amplification, (5) Insurance, (6) Vehicles, (7) Concession of Goods, (8) Revenue, (9) Safety, (10) Portable Toilets, (11) Cleanup, and (12) Evaluation.3 RAR challenges seven of the areas addressed by the Guidelines: Permits, Hours/Dates of use, Attendance, Sound Amplification, Insurance, Vehicles and Revenue. Each of the challenged subject areas is discussed more fully below.

On the first page of the six-page Guidelines, their purpose is described as being to assist sponsors of events at the Bandshell "in understanding their responsibilities; to prevent overuse, crowding, security problems and excessive noise; and to avoid conflicts with other users of Central Park." Those who intend to sponsor an event at the Bandshell are informed that if their proposed event fails to "meet" the Guidelines, they should "consider using an alternate site." Despite the advisory flavor of these introductory remarks, the parties agree that the Guidelines are intended as enforceable regulations. Events that conflict with the Guidelines will not be permitted at the Bandshell.4

RAR contends that the Guidelines are facially invalid, claiming that they operate as a prior restraint on the right of free speech. The evidence adduced at trial also requires consideration of certain of the Guidelines as applied to RAR.

Discussion
A. First Amendment Law for Public Forums

The First Amendment to the Constitution, as applied to the states through the Fourteenth Amendment, prohibits public authority from, inter alia, abridging the freedom of speech, or the right of the people peaceably to assemble, in places customarily used as forums for public speech. Central Park is unquestionably such a public forum.5 Justice Roberts' oft quoted statement in Hague v. C.I.O., 307 U.S. 496, 515-16, 59 S.Ct. 954, 963-64, 83 L.Ed. 1423 (1938) while establishing this proposition, also provides an excellent backdrop for the present controversy:

"Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied."

The tension between an individual's relative (not absolute) freedoms of expression and assembly and public concerns of comfort, convenience, peace and good order is further defined in subsequent Supreme Court cases. Despite plaintiff's faint suggestion to the contrary, we deal in this case with content-neutral regulations. "Expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place and manner restrictions." Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984). "`Content-neutral' time, place and manner regulations are acceptable so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication." City of Renton v. Playtime Theaters Inc., 475 U.S. 41, 106 S.Ct. 925, 928, 89 L.Ed.2d 29 (1986).

Once a governmental regulation is shown to impinge upon the First Amendment rights of an individual or group, government bears the burden of showing both the validity of the interests sought to be protected by the regulation, and the absence of less restrictive alternatives. Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983); Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1980); Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941); Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939). The challenged regulation will be held unconstitutional unless the government proves that it is "narrowly tailored to further the State's legitimate interest." Grayned v. City of Rockford, 408 U.S. 104, 116-17, 92 S.Ct. 2294, 2303-04, 33 L.Ed.2d 222 (1972). See also Eastern Connecticut Citizens Action Group v. Powers, 723 F.2d 1050 (2d Cir. 1983).

For First Amendment purposes, "speech" extends to musical expression, as well as the spoken word. Cinevision Corp. v. City of Burbank, 745 F.2d 560 (9th Cir.1984).

Against these general considerations, I turn to the particular regulations at bar.

B. Sound Amplification

The Guideline section regarding Sound Amplification declares that the "DEPARTMENT OF PARKS AND RECREATION IS TO BE THE SOLE AND ONLY PROVIDER OF SOUND AMPLIFICATION." This declaration entails two discrete requirements: first, that sponsors use a sound amplification system provided by the New York Sound Company ("New York Sound"), a vendor selected by the Parks Department; and second, that the...

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