Ward v. Rock Against Racism

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 result was 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 Shell in 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 two citations, city officials shut off the band shell's electricity, angering the crowd. When the city refused to issue a permit to RAR to use the band shell the following year and suggested alternate sites, the organization threatened legal 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 of the Naumberg band shell would be required to use both the permanent amplification equipment and the sound engineer provided by the city. The system would thus 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, but Rock Against Racism challenged the guidelines as an intrusion upon the First Amendment 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 with a 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 the Naumberg sound system remained undecided. RAR added a suit for damages and a request 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.