Ward v. Rock Against Racism

The case was argued before the Court on 27 February 1989. RARs attorney, William M. Kunstler, explained to the justices how onstage microphones relay the sound 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 have a 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 intruding upon 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 with the First Amendment, such laws are required to be "narrowly tailored to serve significant governmental interests"--for example, banning musical concerts is 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 the city that the guidelines were unobtrusive. In a decision written by Justice Anthony 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 controlling the 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 or to 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's claim 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 the decision 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 before a 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 to free 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 the Court 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."