Ward v. Rock Against Racism

Petitioner
Benjamin R. Ward, New York City Police Commissioner
Respondent
Rock Against Racism
Petitioner's Claim
U.S. Circuit Court of Appeals ruling that a city guideline regulating sound volume as unconstitutional was in error.
Chief Lawyer for Petitioner
Leonard J. Koerner
Chief Lawyer for Respondent
William M. Kunstler
Justices for the Court
Harry A. Blackmun, Anthony M. Kennedy (writing for the Court), Sandra Day O'Connor, William H. Rehnquist, Antonin Scalia, Byron R. White
Justices Dissenting
William J. Brennan, Jr., Thurgood Marshall, John Paul Stevens
Place
Washington, D.C.
Date of Decision
22 June 1989
Decision
In favor of appellant Ward, reversing the appeal court decision.
Significance
Prompted by lawsuits over the volume of rock concerts, the Court found itselfweighing the legality of local regulation versus the right to free speech.
Rock and A Loud Place
Amid a season of testimony about issues like civil rights and abortion, the 1989 Supreme Court got a lesson in how rock concerts are amplified. The resultwas a decision in which the Court divided over the intent of the First Amendment.
Starting in 1979, a New York anti-fascist organization called Rock Against Racism (RAR) began holding annual concerts at the Naumberg Acoustic Band Shellin Central Park. RAR's 1984 concert produced complaints from neighbors and park visitors in the nearby Sheep Meadow, a portion of Central Park reserved for "passive recreation." After repeated warnings to lower the volume, and twocitations, city officials shut off the band shell's electricity, angering thecrowd. When the city refused to issue a permit to RAR to use the band shellthe following year and suggested alternate sites, the organization threatenedlegal action against the city. The two sides came to an agreement and a permit was issued, but the city began looking for a way to avoid repeating such disagreements.
The city decided to install a permanent sound system and contract an independent sound technician to run the equipment. Under new guidelines, all users ofthe Naumberg band shell would be required to use both the permanent amplification equipment and the sound engineer provided by the city. The system wouldthus be operated by someone familiar with the intricacies of the band shell's acoustics and would be less likely to simply turn up the volume in answer to any problems that might arise.
The 1986 summer season of concerts proceeded at the Naumberg band shell, butRock Against Racism challenged the guidelines as an intrusion upon the FirstAmendment right to free expression. RARs initial legal challenge was unsuccessful. Noting that other users, ranging from reggae bands to opera companies,had been satisfied with the permanent system, the U.S. district court ruled that the guidelines were a valid constitutional regulation. Upon appeal, however, the U.S. Court of Appeals for the Second Circuit decided that the city had not protected the First Amendment by proving that its guidelines were the "least intrusive" means of regulating the sound volume. Instead, the court ruled, the city might have simply set a finite decibel level for all users witha warning that excessive volume would result in the system being turned off.
The court granted RAR an injunction against enforcement of the guidelines. While the injunction was in force, RARs annual concert took place, producing the usual complaints. After the concert was over, the issue of control over theNaumberg sound system remained undecided. RAR added a suit for damages and arequest for a declaratory statement striking down the guidelines as invalid.Naming Police Commissioner Benjamin Ward as appellant, the city sought a reversal of the appeals court decision in the next highest judicial venue, the U.S. Supreme Court.
A Sound Lesson
The case was argued before the Court on 27 February 1989. RARs attorney, William M. Kunstler, explained to the justices how onstage microphones relay thesound of instruments and vocals through a central mixing board. From this console, a sound engineer balances the individual instruments into an overall "mix," controlling the volume and making necessary adjustments. Kunstler explained that using a sound engineer who was unfamiliar with a performer's music was similar to switching symphony conductors, each of whom was likely to havea different concept of how a piece of music was to be interpreted. By requiring that every performer use the city's sound engineer, the city was intrudingupon the performers right to control the actual sound of their music. Consequently, Kunstler argued, the guidelines intruded upon the First Amendment right to free expression.
Kunstler also argued that the guidelines were excessively broad. While free expression is guaranteed by the First Amendment, laws governing the time, place, and manner of such expression are also legitimate. To avoid conflicts withthe First Amendment, such laws are required to be "narrowly tailored to serve significant governmental interests"--for example, banning musical concertsis unconstitutional, but a "narrowly tailored" ordinance banning concerts between 11 p.m. and 6 a.m. can be valid in the interest of preserving public peace. To RAR and Kunstler, the city's assumption of utter control of all amplification at the Naumberg band shell overstepped the alleged goal of merely avoiding excessive noise beyond the band shell area.
When the Court returned with its decision on 22 June 1989, it agreed with thecity that the guidelines were unobtrusive. In a decision written by JusticeAnthony Kennedy, the majority agreed upon a number of things the controversial guidelines did not do. They did not authorize the suppression of free speech nor did they seek to ban rock concerts. The guidelines applied to all genres of music performed at the band shell and were therefore "content-neutral."The majority noted that the guidelines required the hired sound engineer to defer to the wishes of the performers and their representatives in controllingthe sound mix. Any interference with a performer's message by manipulating the sound quality was expressly forbidden by the guidelines.
The Court recognized the equal rights of citizens to avoid excessive noise orto enjoy the concerts in the park. Unlike the appeals court, however, the majority decided that the city was not required to prove that it had made an analysis of "less restrictive" alternatives to the guidelines. Since no proof had been offered that the city's regulation of the sound had been inadequate or substandard for the RAR concerts, the Court decided that the organization'sclaim that the guideline was unnecessarily broad had no merit.
Justices Kennedy, Rehnquist, White, O'Connor, and Scalia joined in the majority decision, with Justice Blackmun concurring in the result. The appeals court decision against Commissioner Ward and New York City was reversed. Yet thedecision was not unanimous. Justices Brennan and Stevens joined in a dissenting opinion written by Justice Marshall.
If the city indeed deferred to each performer's wishes in mixing the sound, Marshall wondered why the city's engineer was necessary. Marshall and the dissenters felt that the majority opinion regarding "narrow tailoring" was inconsistent with the Court's own stand the previous year in its Frisby v. Schultz (1988) decision. In that case, the Court had defined a statute as being "narrowly tailored" only "if it targets and eliminates no more than the exact source of the `evil' it seeks to remedy." Instead of adopting guidelines like those used by the National Park Service--monitoring the volume level at the perimeter of the event, conferring with the sponsors, and if necessary shutting off the power--New York City had interjected itself into the means by which performances were created. To adopt rules effecting a performance beforea note was played amounted to an "impermissible prior restraint" of free speech. Giving government the freedom to legislate itself into the creative process, Justice Marshall felt, was to "eviscerate" the First Amendment right tofree expression.
"Today's decision has significance far beyond the world of rock music," he warned, as if cautioning anyone who might have considered the issue before theCourt to be frivolous. "Government no longer need balance the effectiveness of regulation with the burdens on free speech. After today, government need only assert that it is most effective to control speech in advance of its expression."
Related Cases

• United States v. O'Brien, 391 U.S. 367 (1968).
  
• Grayned v. City of Rockford, 408 U.S. 104 (1972).
  
• Wygant v. Jackson Board of Education, 476 U.S. 267 (1986).
  
• Boos v. Barry, 485 U.S. 312 (1988).
  
• Frisby v. Schultz, 487 U.S. 474 (1988).