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| [1] | SUPREME COURT OF THE UNITED STATES |
| [2] | No. 88-226 |
| [3] | 1989.SCT.3126 <http://www.versuslaw.com>,
491 U.S. 781, 109 S. Ct. 2746, 105 L. Ed. 2d 661, 57 U.S.L.W. 4879 |
| [4] | June 22, 1989 |
| [5] | WARD ET AL. v. ROCK AGAINST RACISM |
| [6] | CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. |
| [7] | Leonard J. Koerner argued the cause for petitioners. With him on the brief
were Peter L. Zimroth, Larry A. Sonnenshein, and Julian L. Kalkstein. |
| [8] | William M. Kunstler argued the cause for respondent. With him on the brief
was Noah A. Kinigstein.* |
| [9] | Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C.
J., and White, O'Connor, and Scalia, JJ., joined. Blackmun, J., concurred
in the result. Marshall, J., filed a Dissenting opinion, in which Brennan
and Stevens, JJ., joined, post, p. 803. |
| [10] | The opinion of the court was delivered by: Kennedy |
| [11] | Respondent Rock Against Racism (RAR), furnishing its own sound equipment
and technicians, has sponsored yearly programs of rock music at the Naumberg
Acoustic Bandshell in New York City's Central Park. The city received numerous
complaints about excessive noise at RAR's concerts from users of the nearby
Sheep Meadow, an area designated by the city for passive recreation, from
other users of the park, and from residents of areas adjacent to the park.
Moreover, when the city shut off the power after RAR ignored repeated requests
to lower the volume at one of its concerts, the audience became abusive
and disruptive. The city also experienced problems at bandshell events put
on by other sponsors, who, due to their use of inadequate sound equipment
or sound technicians unskilled at mixing sound for the bandshell area, were
unable to provide sufficient amplification levels, resulting in disappointed
or unruly audiences. Rejecting various other solutions to the excessive
noise and inadequate amplification problems, the city adopted a Use Guideline
for the bandshell which specified that the city would furnish high quality
sound equipment and retain an independent, experienced sound technician
for all performances. After the city implemented this guideline, RAR amended
a pre-existing District Court complaint against the city to seek damages
and a declaratory judgment striking down the guideline as facially invalid
under the First Amendment. The court upheld the guideline, finding, inter
alia, that performers who had used the city's sound system and technician
had been uniformly pleased; that, although the city's technician ultimately
controlled both sound volume and mix, the city's practice was to give the
sponsor autonomy as to mix and to confer with him before turning the volume
down; and that the city's amplification system was sufficient for RAR's
needs. Applying this Court's three-part test for judging the constitutionality
of governmental regulation of the time, place, and manner of protected speech,
the court found the guideline valid. The Court of Appeals reversed on the
ground that such regulations' method and extent must be the least intrusive
upon the freedom of expression as is reasonably necessary to achieve the
regulations purpose, finding that there were various less restrictive means
by which the city could control excessive volume without also intruding
on RAR's ability to control sound mix. |
| [12] | Held: The city's sound-amplification guideline is valid under the First
Amendment as a reasonable regulation of the place and manner of protected
speech. Pp. 790-803. |
| [13] | (a) The guideline is content neutral, since it is justified without reference
to the content of the regulated speech. The city's principal justification
-- the desire to control noise in order to retain the sedate character of
the Sheep Meadow and other areas of the park and to avoid intrusion into
residential areas -- has nothing to do with content. The city's other justification,
its interest in ensuring sound quality, does not render the guideline content
based as an attempt to impose subjective standards of acceptable sound mix
on performers, since the city has expressly disavowed any such intent and
requires its technician to defer to the sponsor's wishes as to mix. On the
record below, the city's sound quality concern extends only to the clearly
content-neutral goals of ensuring adequate amplification and avoiding volume
problems associated with inadequate mix. There is no merit to RAR's argument
that the guideline is nonetheless invalid on its face because it places
unbridled discretion in the hands of city enforcement officials. Even granting
the doubtful proposition that this claim falls within the narrow class of
permissible facial challenges to allegedly unconstrained grants of regulatory
authority, the claim nevertheless fails, since the guideline's own terms
in effect forbid officials purposely to select an inadequate system or to
vary sound quality or volume based on the performer's message. Moreover,
the city has applied a narrowing construction to the guideline by requiring
officials to defer to sponsors on sound quality and confer with them as
to volume problems, and by mandating that amplification be sufficient for
the sound to reach all concert ground listeners. Pp. 791-796. |
| [14] | (b) The guideline is narrowly tailored to serve significant governmental
interests. That the city has a substantial interest in protecting citizens
from unwelcome and excessive noise, even in a traditional public forum such
as the park, cannot be doubted. Moreover, it has a substantial interest
in ensuring the sufficiency of sound amplification at bandshell events in
order to allow citizens to enjoy the benefits of the park, in light of the
evidence that inadequate amplification had resulted in the inability of
some audiences to hear performances. The Court of Appeals erred in requiring
the city to prove that the guideline was the least intrusive means of furthering
these legitimate interests, since a "less-restrictive-alternative analysis"
has never been -- and is here, again, specifically rejected as -- a part
of the inquiry into the validity of a time, place, or manner regulation.
See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293; Regan
v. Time, Inc., 468 U.S. 641. The requirement of narrow tailoring is satisfied
so long as the regulation promotes a substantial governmental interest that
would be achieved less effectively absent the regulation, and the means
chosen are not substantially broader than necessary to achieve that interest.
If these standards are met, courts should defer to the government's reasonable
determination. Here, the city's substantial interest in limiting sound volume
is served in a direct and effective way by the requirement that its technician
control the mixing board. Absent this requirement, the city's interest would
have been served less well, as is evidenced by the excessive noise complaints
generated by RAR's past concerts. The city also could reasonably have determined
that, overall, its interest in ensuring that sound amplification was sufficient
to reach all concert ground listeners would be served less effectively without
the guideline than with it, since, by providing competent technicians and
adequate equipment, the city eliminated inadequate amplification problems
that plagued some performers in the past. Furthermore, in the absence of
evidence that the guideline had a substantial deleterious effect on the
ability of performers to achieve the quality of sound they desired, there
is no merit to RAR's contention that the guideline is substantially broader
than necessary to achieve the city's legitimate ends. Pp. 796-802. |
| [15] | (c) The guideline leaves open ample alternative channels of communication,
since it does not attempt to ban any particular manner or type of expression
at a given place and time. Rather, it continues to permit expressive activity
in the bandshell and has no effect on the quantity or content of that expression
beyond regulating the extent of amplification. That the city's volume limitations
may reduce to some degree the potential audience for RAR's speech is of
no consequence, since there has been no showing that the remaining avenues
of communication are inadequate. Pp. 802-803. |
| [16] | JUSTICE KENNEDY delivered the opinion of the Court. |
| [17] | In the southeast portion of New York City's Central Park, about 10 blocks
upward from the park's beginning point at 59th Street, there is an amphitheater
and stage structure known as the Naumberg Acoustic Bandshell. The bandshell
faces west across the remaining width of the park. In close proximity to
the bandshell, and lying within the directional path of its sound, is a
grassy open area called the Sheep Meadow. The city has designated the Sheep
Meadow as a quiet area for passive recreations like reclining, walking,
and reading. Just beyond the park, and also within the potential sound range
of the bandshell, are the apartments and residences of Central Park West. |
| [18] | This case arises from the city's attempt to regulate the volume of amplified
music at the bandshell so the performances are satisfactory to the audience
without intruding upon those who use the Sheep Meadow or live on Central
Park West and in its vicinity. |
| [19] | The city's regulation requires bandshell performers to use sound-amplification
equipment and a sound technician provided by the city. The challenge to
this volume control technique comes from the sponsor of a rock concert.
The trial court sustained the noise control measures, but the Court of Appeals
for the Second Circuit reversed. We granted certiorari to resolve the important
First Amendment issues presented by the case. |
| [20] | I |
| [21] | Rock Against Racism, respondent in this case, is an unincorporated association
which, in its own words, is "dedicated to the espousal and promotion
of antiracist views." App. to Pet. for Cert. 3. Each year from 1979
through 1986, RAR has sponsored a program of speeches and rock music at
the bandshell. RAR has furnished the sound equipment and sound technician
used by the various performing groups at these annual events. |
| [22] | Over the years, the city received numerous complaints about excessive
sound amplification at respondent's concerts from park users and residents
of areas adjacent to the park. On some occasions RAR was less than cooperative
when city officials asked that the volume be reduced; at one concert, police
felt compelled to cut off the power to the sound system, an action that
caused the audience to become unruly and hostile. App. 127-131, 140-141,
212-214, 345-347. |
| [23] | Before the 1984 concert, city officials met with RAR representatives to
discuss the problem of excessive noise. It was decided that the city would
monitor sound levels at the edge of the concert ground, and would revoke
respondent's event permit if specific volume limits were exceeded. Sound
levels at the concert did exceed acceptable levels for sustained periods
of time, despite repeated warnings and requests that the volume be lowered.
Two citations for excessive volume were issued to respondent during the
concert. When the power was eventually shut off, the audience became abusive
and disruptive. |
| [24] | The following year, when respondent sought permission to hold its upcoming
concert at the bandshell, the city declined to grant an event permit, citing
its problems with noise and crowd control at RAR's previous concerts. The
city suggested some other city-owned facilities as alternative sites for
the concert. RAR declined the invitation and filed suit in United States
District Court against the city, its mayor, and various police and parks
department officials, seeking an injunction directing issuance of an event
permit. After respondent agreed to abide by all applicable regulations,
the parties reached agreement and a permit was issued. |
| [25] | The city then undertook to develop comprehensive New York City Parks Department
Use Guidelines for the Naumberg Bandshell. A principal problem to be addressed
by the guidelines was controlling the volume of amplified sound at bandshell
events. A major concern was that at some bandshell performances the event
sponsors had been unable to "provide the amplification levels required
and 'crowds unhappy with the sound became disappointed or unruly.'"
Brief for Petitioners 9. The city found that this problem had several causes,
including inadequate sound equipment, sound technicians who were either
unskilled at mixing sound outdoors or unfamiliar with the acoustics of the
bandshell and its surroundings, and the like. Because some performers compensated
for poor sound mix by raising volume, these factors tended to exacerbate
the problem of excess noise. *fn1
App. 30, 189, 218-219. |
| [26] | The city considered various solutions to the sound-amplification problem.
The idea of a fixed decibel limit for all performers using the bandshell
was rejected because the impact on listeners of a single decibel level is
not constant, but varies in response to changes in air temperature, foliage,
audience size, and like factors. Id., at 31, 220, 285-286. The city also
rejected the possibility of employing a sound technician to operate the
equipment provided by the various sponsors of bandshell events, because
the city's technician might have had difficulty satisfying the needs of
sponsors while operating unfamiliar, and perhaps inadequate, sound equipment.
Id., at 220. Instead, the city concluded that the most effective way to
achieve adequate but not excessive sound amplification would be for the
city to furnish high quality sound equipment and retain an independent,
experienced sound technician for all performances at the bandshell. After
an extensive search the city hired a private sound company capable of meeting
the needs of all the varied users of the bandshell. |
| [27] | The Use Guidelines were promulgated on March 21, 1986. *fn2
After learning that it would be expected to comply with the guidelines at
its upcoming annual concert in May 1986, respondent returned to the District
Court and filed a motion for an injunction against the enforcement of certain
aspects of the guidelines. The District Court preliminarily enjoined enforcement
of the sound-amplification rule on May 1, 1986. See 636 F. Supp. 178 (SDNY
1986). Under the protection of the injunction, and alone among users of
the bandshell in the 1986 season, RAR was permitted to use its own sound
equipment and technician, just as it had done in prior years. RAR's 1986
concert again generated complaints about excessive noise from park users
and nearby residents. App. 127, 138. |
| [28] | After the concert, respondent amended its complaint to seek damages and
a declaratory judgment striking down the guidelines as facially invalid.
After hearing five days of testimony about various aspects of the guidelines,
the District Court issued its decision upholding the sound-amplification
guideline. *fn3 The court found
that the city had been "motivated by a desire to obtain top-flight
sound equipment and experienced operators" in selecting an independent
contractor to provide the equipment and technician for bandshell events,
and that the performers who did use the city's sound system in the 1986
season, in performances "which ran the full cultural gamut from grand
opera to salsa to reggae," were uniformly pleased with the quality
of the sound provided. 658 F. Supp. 1346, 1352 (SDNY 1987). |
| [29] | Although the city's sound technician controlled both sound volume and
sound mix by virtue of his position at the mixing board, the court found
that "he City's practice for events at the Bandshell is to give the
sponsor autonomy with respect to the sound mix: balancing treble with bass,
highlighting a particular instrument or voice, and the like," and that
the city's sound technician "does all he can to accommodate the sponsor's
desires in those regards." Ibid. Even with respect to volume control,
the city's practice was to confer with the sponsor before making any decision
to turn the volume down. Ibid. In some instances, as with a New York Grand
Opera performance, the sound technician accommodated the performers' unique
needs by integrating special microphones with the city's equipment. The
court specifically found that "he City's implementation of the Bandshell
guidelines provides for a sound amplification system capable of meeting
RAR's technical needs and leaves control of the sound 'mix' in the hands
of RAR." Id., at 1353. Applying this Court's three-part test for judging
the constitutionality of government regulation of the time, place, or manner
of protected speech, the court found the city's regulation valid. |
| [30] | The Court of Appeals reversed. 848 F.2d 367 (CA2 1988). After recognizing
that "ontent neutral time, place and manner regulations are permissible
so long as they are narrowly tailored to serve a substantial government
interest and do not unreasonably limit alternative avenues of expression,"
the court added the proviso that "the method and extent of such regulation
must be reasonable, that is, it must be the least intrusive upon the freedom
of expression as is reasonably necessary to achieve a legitimate purpose
of the regulation." Id., at 370 (citing United States v. O'Brien, 391
U.S. 367, 377 (1968)). Applying this test, the court determined that the
city's guideline was valid only to the extent necessary to achieve the city's
legitimate interest in controlling excessive volume, but found there were
various alternative means of controlling volume without also intruding on
respondent's ability to control the sound mix. For example, the city could
have directed respondent's sound technician to keep the volume below specified
levels. Alternatively, a volume-limiting device could have been installed;
and as a "last resort," the court suggested, "the plug can
be pulled on the sound to enforce the volume limit." 848 F.2d, at 372,
n. 6. In view of the potential availability of these seemingly less restrictive
alternatives, the Court of Appeals concluded that the sound-amplification
guideline was invalid because the city had failed to prove that its regulation
"was the least intrusive means of regulating the volume." Id.,
at 371. |
| [31] | We granted certiorari, 488 U.S. 816 (1988), to clarify the legal standard
applicable to governmental regulation of the time, place, or manner of protected
speech. Because the Court of Appeals erred in requiring the city to prove
that its regulation was the least intrusive means of furthering its legitimate
governmental interests, and because the ordinance is valid on its face,
we now reverse. |
| [32] | II |
| [33] | Music is one of the oldest forms of human expression. From Plato's discourse
in the Republic to the totalitarian state in our own times, rulers have
known its capacity to appeal to the intellect and to the emotions, and have
censored musical compositions to serve the needs of the state. See 2 Dialogues
of Plato, Republic, bk. 3, pp. 231, 245-248 (B. Jowett transl., 4th ed.
1953) ("Our poets must sing in another and a nobler strain");
Musical Freedom and Why Dictators Fear It, N. Y. Times, Aug. 23, 1981, section
2, p. 1, col. 5; Soviet Schizophrenia toward Stravinsky, N. Y. Times, June
26, 1982, section 1, p. 25, col. 2; Symphonic Voice from China Is Heard
Again, N. Y. Times, Oct. 11, 1987, section 2, p. 27, col. 1. The Constitution
prohibits any like attempts in our own legal order. Music, as a form of
expression and communication, is protected under the First Amendment. In
the case before us the performances apparently consisted of remarks by speakers,
as well as rock music, but the case has been presented as one in which the
constitutional challenge is to the city's regulation of the musical aspects
of the concert; and, based on the principle we have stated, the city's guideline
must meet the demands of the First Amendment. The parties do not appear
to dispute that proposition. |
| [34] | We need not here discuss whether a municipality which owns a bandstand
or stage facility may exercise, in some circumstances, a proprietary right
to select performances and control their quality. See Southeastern Promotions,
Ltd. v. Conrad, 420 U.S. 546, 570-574 (1975) (Rehnquist, J., Dissenting).
Though it did demonstrate its own interest in the effort to insure high
quality performances by providing the equipment in question, the city justifies
its guideline as a regulatory measure to limit and control noise. Here the
bandshell was open, apparently, to all performers; and we decide the case
as one in which the bandshell is a public forum for performances in which
the government's right to regulate expression is subject to the protections
of the First Amendment. United States v. Grace, 461 U.S. 171, 177 (1983);
see Frisby v. Schultz, 487 U.S. 474, 481 (1988); Perry Education Assn. v.
Perry Local Educators' Assn., 460 U.S. 37, 45 (1983). Our cases make clear,
however, that even in a public forum the government may impose reasonable
restrictions on the time, place, or manner of protected speech, provided
the restrictions "are justified without reference to the content of
the regulated speech, that they are narrowly tailored to serve a significant
governmental interest, and that they leave open ample alternative channels
for communication of the information." Clark v. Community for Creative
Non-Violence, 468 U.S. 288, 293 (1984); see Heffron v. International Society
for Krishna Consciousness, Inc., 452 U.S. 640, 648 (1981) (quoting Virginia
Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748,
771 (1976)). We consider these requirements in turn. |
| [35] | A |
| [36] | The principal inquiry in determining content neutrality, in speech cases
generally and in time, place, or manner cases in particular, is whether
the government has adopted a regulation of speech because of disagreement
with the message it conveys. Community for Creative Non-Violence, supra,
at 295. The government's purpose is the controlling consideration. A regulation
that serves purposes unrelated to the content of expression is deemed neutral,
even if it has an incidental effect on some speakers or messages but not
others. See Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47-48 (1986).
Government regulation of expressive activity is content neutral so long
as it is " justified without reference to the content of the regulated
speech." Community for Creative Non-Violence, supra, at 293 (emphasis
added); Heffron, supra, at 648 (quoting Virginia Pharmacy Bd., supra, at
771); see Boos v. Barry, 485 U.S. 312, 320-321 (1988) (opinion of O'Connor,
J.). |
| [37] | The principal justification for the sound-amplification guideline is the
city's desire to control noise levels at bandshell events, in order to retain
the character of the Sheep Meadow and its more sedate activities, and to
avoid undue intrusion into residential areas and other areas of the park.
This justification for the guideline "ha nothing to do with content,"
Boos v. Barry, supra, at 320, and it satisfies the requirement that time,
place, or manner regulations be content neutral. |
| [38] | The only other justification offered below was the city's interest in
"ensur the quality of sound at Bandshell events." 658 F. Supp.,
at 1352; see 848 F.2d, at 370, n. 3. Respondent urges that this justification
is not content neutral because it is based upon the quality, and thus the
content, of the speech being regulated. In respondent's view, the city is
seeking to assert artistic control over performers at the bandshell by enforcing
a bureaucratically determined, valueladen conception of good sound. That
all performers who have used the city's sound equipment have been completely
satisfied is of no moment, respondent argues, because "he First Amendment
does not permit and cannot tolerate state control of artistic expression
merely because the State claims that efforts will lead to 'top-quality'
results." Brief for Respondent 19. |
| [39] | While respondent's arguments that the government may not interfere with
artistic judgment may have much force in other contexts, they are inapplicable
to the facts of this case. The city has disclaimed in express terms any
interest in imposing its own view of appropriate sound mix on performers.
To the contrary, as the District Court found, the city requires its sound
technician to defer to the wishes of event sponsors concerning sound mix.
658 F. Supp., at 1352-1353. On this record, the city's concern with sound
quality extends only to the clearly content-neutral goals of ensuring adequate
sound amplification and avoiding the volume problems associated with inadequate
sound mix. *fn4 Any governmental
attempt to serve purely esthetic goals by imposing subjective standards
of acceptable sound mix on performers would raise serious First Amendment
concerns, but this case provides us with no opportunity to address those
questions. As related above, the District Court found that the city's equipment
and its sound technician could meet all of the standards requested by the
performers, including RAR. |
| [40] | Respondent argues further that the guideline, even if not content based
in explicit terms, is nonetheless invalid on its face because it places
unbridled discretion in the hands of city officials charged with enforcing
it. See Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 769-772 (1988)
(4-to-3 decision); Heffron v. International Society for Krishna Consciousness,
Inc., supra, at 649; Freedman v. Maryland, 380 U.S. 51, 56 (1965); Thornhill
v. Alabama, 310 U.S. 88, 97 (1940). According to respondent, there is nothing
in the language of the guideline to prevent city officials from selecting
wholly inadequate sound equipment or technicians, or even from varying the
volume and quality of sound based on the message being conveyed by the performers. |
| [41] | As a threshold matter, it is far from clear that respondent should be
permitted to bring a facial challenge to this aspect of the regulation.
Our cases permitting facial challenges to regulations that allegedly grant
officials unconstrained authority to regulate speech have generally involved
licensing schemes that "ves unbridled discretion in a government official
over whether to permit or deny expressive activity." Plain Dealer,
supra, at 755. The grant of discretion that respondent seeks to challenge
here is of an entirely different, and lesser, order of magnitude, because
respondent does not suggest that city officials enjoy unfettered discretion
to deny bandshell permits altogether. Rather, respondent contends only that
the city, by exercising what is concededly its right to regulate amplified
sound, could choose to provide inadequate sound for performers based on
the content of their speech. Since respondent does not claim that city officials
enjoy unguided discretion to deny the right to speak altogether, it is open
to question whether respondent's claim falls within the narrow class of
permissible facial challenges to allegedly unconstrained grants of regulatory
authority. Cf. 486 U.S., at 787 (White, J., Dissenting) (arguing that facial
challenges of this type are permissible only where "the local law at
issue require licenses -- not for a narrow category of expressive conduct
that could be prohibited -- but for a sweeping range of First Amendment
protected activity"). |
| [42] | We need not decide, however, whether the "extraordinary doctrine"
that permits facial challenges to some regulations of expression, see id.,
at 772 (White, J., Dissenting), should be extended to the circumstances
of this case, for respondent's facial challenge fails on its merits. The
city's guideline states that its goals are to "provide the best sound
for all events" and to "insure appropriate sound quality balanced
with respect for nearby residential neighbors and the mayorally decreed
quiet zone of Sheep Meadow." App. 375. While these standards are undoubtedly
flexible, and the officials implementing them will exercise considerable
discretion, perfect clarity and precise guidance have never been required
even of regulations that restrict expressive activity. See Grayned v. City
of Rockford, 408 U.S. 104, 110 (1972) ("Condemned to the use of words,
we can never expect mathematical certainty in our language"); see also
Kovacs v. Cooper, 336 U.S. 77, 79 (1949) (rejecting vagueness challenge
to city ordinance forbidding "loud and raucous" sound amplification)
(opinion of Reed, J.). By its own terms the city's sound-amplification guideline
must be interpreted to forbid city officials purposely to select inadequate
sound systems or to vary the sound quality or volume based on the message
being delivered by performers. The guideline is not vulnerable to respondent's
facial challenge. *fn5 |
| [43] | Even if the language of the guideline were not sufficient on its face
to withstand challenge, our ultimate Conclusion would be the same, for the
city has interpreted the guideline in such a manner as to provide additional
guidance to the officials charged with its enforcement. The District Court
expressly found that the city's policy is to defer to the sponsor's desires
concerning sound quality. 658 F. Supp., at 1352. With respect to sound volume,
the city retains ultimate control, but city officials "mak it a practice
to confer with the sponsor if any questions of excessive sound arise, before
taking any corrective action." Ibid. The city's goal of ensuring that
"the sound amplification sufficient to reach all listeners within the
defined concertground," ibid., serves to limit further the discretion
of the officials on the scene. Administrative interpretation and implementation
of a regulation are, of course, highly relevant to our analysis, for "n
evaluating a facial challenge to a state law, a federal court must . . .
consider any limiting construction that a state court or enforcement agency
has proffered." Hoffman Estates v. The Flipside, Hoffman Estates, Inc.,
455 U.S. 489, 494, n. 5 (1982); see Plain Dealer, 486 U.S., at 769-770,
and n. 11; United States v. Grace, 461 U.S., at 181, n. 10; Grayned v. City
of Rockford, supra, at 110; Poulos v. New Hampshire, 345 U.S. 395 (1953).
Any inadequacy on the face of the guideline would have been more than remedied
by the city's narrowing construction. |
| [44] | B |
| [45] | The city's regulation is also "narrowly tailored to serve a significant
governmental interest." Community for Creative Non-Violence, 468 U.S.,
at 293. Despite respondent's protestations to the contrary, it can no longer
be doubted that government "ha a substantial interest in protecting
its citizens from unwelcome noise." City Council of Los Angeles v.
Taxpayers for Vincent, 466 U.S. 789, 806 (1984) (citing Kovacs v. Cooper,
supra); see Grayned, supra, at 116. This interest is perhaps at its greatest
when government seeks to protect "'the well-being, tranquility, and
privacy of the home,'" Frisby v. Schultz, 487 U.S., at 484 (quoting
Carey v. Brown, 447 U.S. 455, 471 (1980)), but it is by no means limited
to that context, for the government may act to protect even such traditional
public forums as city streets and parks from excessive noise. Kovacs v.
Cooper, 336 U.S., at 86-87 (opinion of Reed, J.); id., at 96-97 (Frankfurter,
J., Concurring); id., at 97 (Jackson, J., Concurring); see Community for
Creative Non-Violence, supra, at 296 (recognizing the government's "substantial
interest in maintaining the parks . . . in an attractive and intact condition,
readily available to the millions of people who wish to see and enjoy them"). |
| [46] | We think it also apparent that the city's interest in ensuring the sufficiency
of sound amplification at bandshell events is a substantial one. The record
indicates that inadequate sound amplification has had an adverse affect
on the ability of some audiences to hear and enjoy performances at the bandshell.
The city enjoys a substantial interest in ensuring the ability of its citizens
to enjoy whatever benefits the city parks have to offer, from amplified
music to silent meditation. See Community for Creative Non-Violence, supra,
at 296. |
| [47] | The Court of Appeals recognized the city's substantial interest in limiting
the sound emanating from the bandshell. See 848 F.2d, at 370. The court
concluded, however, that the city's sound-amplification guideline was not
narrowly tailored to further this interest, because "it has not shown
. . . that the requirement of the use of the city's sound system and technician
was the least intrusive means of regulating the volume." Id., at 371
(emphasis added). In the court's judgment, there were several alternative
methods of achieving the desired end that would have been less restrictive
of respondent's First Amendment rights. |
| [48] | The Court of Appeals erred in sifting through all the available or imagined
alternative means of regulating sound volume in order to determine whether
the city's solution was "the least intrusive means" of achieving
the desired end. This "less-restrictive-alternative analysis . . .
has never been a part of the inquiry into the validity of a time, place,
and manner regulation." Regan v. Time, Inc., 468 U.S. 641, 657 (1984)
(opinion of White, J.). Instead, our cases quite clearly hold that restrictions
on the time, place, or manner of protected speech are not invalid "simply
because there is some imaginable alternative that might be less burdensome
on speech." United States v. Albertini, 472 U.S. 675, 689 (1985). |
| [49] | The Court of Appeals apparently drew its least-intrusivemeans requirement
from United States v. O'Brien, 391 U.S., at 377, the case in which we established
the standard for judging the validity of restrictions on expressive conduct.
See 848 F.2d, at 370. The court's reliance was misplaced, however, for we
have held that the O'Brien test "in the last analysis is little, if
any, different from the standard applied to time, place, or manner restrictions."
Community for Creative Non-Violence, supra, at 298. Indeed, in Community
for Creative Non-Violence, we squarely rejected reasoning identical to that
of the court below: |
| [50] | "We are unmoved by the Court of Appeals' view that the challenged
regulation is unnecessary, and hence invalid, because there are less speech-restrictive
alternatives that could have satisfied the Government interest in preserving
park lands. . . . We do not believe . . . that either United States v. O'Brien
or the time, place, or manner decisions assign to the judiciary the authority
to replace the [parks department] as the manager of the [city's] parks or
endow the judiciary with the competence to Judge how much protection of
park lands is wise and how that level of conservation is to be attained."
468 U.S., at 299. |
| [51] | Lest any confusion on the point remain, we reaffirm today that a regulation
of the time, place, or manner of protected speech must be narrowly tailored
to serve the government's legitimate, content-neutral interests but that
it need not be the least restrictive or least intrusive means of doing so.
*fn6 Rather, the requirement of
narrow tailoring is satisfied "so long as the . . . regulation promotes
a substantial government interest that would be achieved less effectively
absent the regulation." United States v. Albertini, supra, at 689;
see also Community for Creative Non-Violence, supra, at 297. To be sure,
this standard does not mean that a time, place, or manner regulation may
burden substantially more speech than is necessary to further the government's
legitimate interests. Government may not regulate expression in such a manner
that a substantial portion of the burden on speech does not serve to advance
its goals. *fn7 See Frisby v. Schultz,
487 U.S., at 485 ("A complete ban can be narrowly tailored but only
if each activity within the proscription's scope is an appropriately targeted
evil"). So long as the means chosen are not substantially broader than
necessary to achieve the government's interest, however, the regulation
will not be invalid simply because a court concludes that the government's
interest could be adequately served by some less-speech-restrictive alternative.
"The validity of [time, place, or manner] regulations does not turn
on a Judge's agreement with the responsible decisionmaker concerning the
most appropriate method for promoting significant government interests"
or the degree to which those interests should be promoted. United States
v. Albertini, 472 U.S., at 689; see Community for Creative Non-Violence,
supra, at 299. |
| [52] | It is undeniable that the city's substantial interest in limiting sound
volume is served in a direct and effective way by the requirement that the
city's sound technician control the mixing board during performances. Absent
this requirement, the city's interest would have been served less well,
as is evidenced by the complaints about excessive volume generated by respondent's
past concerts. The alternative regulatory methods hypothesized by the Court
of Appeals reflect nothing more than a disagreement with the city over how
much control of volume is appropriate or how that level of control is to
be achieved. See Community for Creative Non-Violence, supra, at 299. The
Court of Appeals erred in failing to defer to the city's reasonable determination
that its interest in controlling volume would be best served by requiring
bandshell performers to utilize the city's sound technician. |
| [53] | The city's second content-neutral justification for the guideline, that
of ensuring "that the sound amplification sufficient to reach all listeners
within the defined concert-ground," 658 F. Supp., at 1352, also supports
the city's choice of regulatory methods. By providing competent sound technicians
and adequate amplification equipment, the city eliminated the problems of
inexperienced technicians and insufficient sound volume that had plagued
some bandshell performers in the past. No doubt this concern is not applicable
to respondent's concerts, which apparently were characterized by more-than-adequate
sound amplification. But that fact is beside the point, for the validity
of the regulation depends on the relation it bears to the overall problem
the government seeks to correct, not on the extent to which it furthers
the government's interests in an individual case. Here, the regulation's
effectiveness must be Judged by considering all the varied groups that use
the bandshell, and it is valid so long as the city could reasonably have
determined that its interests overall would be served less effectively without
the sound-amplification guideline than with it. United States v. Albertini,
supra, at 688-689; Community for Creative Non-Violence, 468 U.S., at 296-297.
Considering these proffered justifications together, therefore, it is apparent
that the guideline directly furthers the city's legitimate governmental
interests and that those interests would have been less well served in the
absence of the sound-amplification guideline. |
| [54] | Respondent nonetheless argues that the sound-amplification guideline is
not narrowly tailored because, by placing control of sound mix in the hands
of the city's technician, the guideline sweeps far more broadly than is
necessary to further the city's legitimate concern with sound volume. According
to respondent, the guideline "targets . . . more than the exact source
of the 'evil' it seeks to remedy." Frisby v. Schultz, supra, at 485. |
| [55] | If the city's regulatory scheme had a substantial deleterious effect on
the ability of bandshell performers to achieve the quality of sound they
desired, respondent's concerns would have considerable force. The District
Court found, however, that pursuant to city policy, the city's sound technician
"give the sponsor autonomy with respect to the sound mix . . . does
all that he can to accommodate the sponsor's desires in those regards."
658 F. Supp., at 1352. The court squarely rejected respondent's claim that
the city's "technician is not able properly to implement a sponsor's
instructions as to sound quality or mix," finding that "o evidence
to that effect was offered at trial; as noted, the evidence is to the contrary."
App. to Pet. for Cert. 89. In view of these findings, which were not disturbed
by the Court of Appeals, we must conclude that the city's guideline has
no material impact on any performer's ability to exercise complete artistic
control over sound quality. Since the guideline allows the city to control
volume without interfering with the performer's desired sound mix, it is
not "substantially broader than necessary" to achieve the city's
legitimate ends, City Council of Los Angeles v. Taxpayers for Vincent, 466
U.S., at 808, and thus it satisfies the requirement of narrow tailoring. |
| [56] | C |
| [57] | The final requirement, that the guideline leave open ample alternative
channels of communication, is easily met. Indeed, in this respect the guideline
is far less restrictive than regulations we have upheld in other cases,
for it does not attempt to ban any particular manner or type of expression
at a given place or time. Cf. Frisby, supra, at 482-484; Community for Creative
Non-Violence, supra, at 295; Renton v. Playtime Theatres, Inc., 475 U.S.,
at 53-54. Rather, the guideline continues to permit expressive activity
in the bandshell, and has no effect on the quantity or content of that expression
beyond regulating the extent of amplification. That the city's limitations
on volume may reduce to some degree the potential audience for respondent's
speech is of no consequence, for there has been no showing that the remaining
avenues of communication are inadequate. See Taxpayers for Vincent, supra,
at 803, and n. 23, 812, and n. 30; Kovacs, 336 U.S., at 88-89 (opinion of
Reed, J.). |
| [58] | III |
| [59] | The city's sound-amplification guideline is narrowly tailored to serve
the substantial and content-neutral governmental interests of avoiding excessive
sound volume and providing sufficient amplification within the bandshell
concert ground, and the guideline leaves open ample channels of communication.
Accordingly, it is valid under the First Amendment as a reasonable regulation
of the place and manner of expression. The judgment of the Court of Appeals
is |
| [60] | Reversed. |
| [61] | JUSTICE BLACKMUN concurs in the result. |
| [62] | JUSTICE MARSHALL, with whom JUSTICE BRENNAN and JUSTICE STEVENS join,
Dissenting. |
| [63] | No one can doubt that government has a substantial interest in regulating
the barrage of excessive sound that can plague urban life. Unfortunately,
the majority plays to our shared impatience with loud noise to obscure the
damage that it does to our First Amendment rights. Until today, a key safeguard
of free speech has been government's obligation to adopt the least intrusive
restriction necessary to achieve its goals. By abandoning the requirement
that time, place, and manner regulations must be narrowly tailored, the
majority replaces constitutional scrutiny with mandatory deference. The
majority's willingness to give government officials a free hand in achieving
their policy ends extends so far as to permit, in this case, government
control of speech in advance of its dissemination. Because New York City's
Use Guidelines (Guidelines) are not narrowly tailored to serve its interest
in regulating loud noise, and because they constitute an impermissible prior
restraint, I Dissent. |
| [64] | I |
| [65] | The majority sets forth the appropriate standard for assessing the constitutionality
of the Guidelines. A time, place, and manner regulation of expression must
be content neutral, serve a significant government interest, be narrowly
tailored to serve that interest, and leave open ample alternative channels
of communication. See Frisby v. Schultz, 487 U.S. 474, 481-482 (1988); Perry
Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 44 (1983).
The Guidelines indisputably are content neutral as they apply to all bandshell
users irrespective of the message of their music. App. 375; see Pacific
Gas & Electric Co. v. Public Utilities Comm'n of Cal., 475 U.S. 1, 20
(1985). *fn1 They also serve government's
significant interest in limiting loud noise in public places, see Grayned
v. Rockford, 408 U.S. 104, 116 (1972), by giving the city exclusive control
of all sound equipment. |
| [66] | My complaint is with the majority's serious distortion of the narrow tailoring
requirement. Our cases have not, as the majority asserts, "clearly"
rejected a less-restrictive-alternative test. Ante, at 797. On the contrary,
just last Term, we held that a statute is narrowly tailored only "if
it targets and eliminates no more than the exact source of the 'evil' it
seeks to remedy." Frisby v. Schultz, supra, at 485. While there is
language in a few opinions which, taken out of context, supports the majority's
position, *fn2 in practice, the
Court has interpreted the narrow tailoring requirement to mandate an examination
of alternative methods of serving the asserted governmental interest and
a determination whether the greater efficacy of the challenged regulation
outweighs the increased burden it places on protected speech. See, e. g.,
Martin v. Struthers, 319 U.S. 141, 147-148 (1943); Schneider v. State, 308
U.S. 147, 162 (1939). In Schneider, for example, the Court invalidated a
ban on handbill distribution on public streets, notwithstanding that it
was the most effective means of serving government's legitimate interest
in minimizing litter, noise, and traffic congestion, and in preventing fraud.
The Court concluded that punishing those who actually litter or perpetrate
frauds was a much less intrusive, albeit not quite as effective, means to
serve those significant interests. Id., at 162, 164; see also Martin, supra,
at 148 (invalidating ban on door-to-door distribution of handbills because
directly punishing fraudulent solicitation was a less intrusive, yet still
effective, means of serving government's interest in preventing fraud).
*fn3 |
| [67] | The Court's past concern for the extent to which a regulation burdens
speech more than would a satisfactory alternative is noticeably absent from
today's decision. The majority requires only that government show that its
interest cannot be served as effectively without the challenged restriction.
Ante, at 799. It will be enough, therefore, that the challenged regulation
advances the government's interest only in the slightest, for any differential
burden on speech that results does not enter the calculus. Despite its protestations
to the contrary, the majority thus has abandoned the requirement that restrictions
on speech be narrowly tailored in any ordinary use of the phrase. *fn4
Indeed, after today's decision, a city could claim that bans on handbill
distribution or on door-to-door solicitation are the most effective means
of avoiding littering and fraud, or that a ban on loudspeakers and radios
in a public park is the most effective means of avoiding loud noise. Logically
extended, the majority's analysis would permit such far-reaching restrictions
on speech. |
| [68] | True, the majority states that "overnment may not regulate expression
in such a manner that a substantial portion of the burden on speech does
not serve to advance its goals." Ibid. But this means that only those
regulations that "engage in the gratuitous inhibition of expression"
will be invalidated. Ely, Flag Desecration: A Case Study in the Roles of
Categorization and Balancing in First Amendment Analysis, 88 Harv. L. Rev.
1482, 1485 (1975). Moreover, the majority has robbed courts of the necessary
analytic tools to make even this limited inquiry. The Court of Appeals examined
"how much control of volume is appropriate how that level of control
is to be achieved," ante, at 800, but the majority admonishes that
court for doing so, stating that it should have "defer to the city's
reasonable determination." Ibid. The majority thus instructs courts
to refrain from examining how much speech may be restricted to serve an
asserted interest and how that level of restriction is to be achieved. If
a court cannot engage in such inquiries, I am at a loss to understand how
a court can ascertain whether the government has adopted a regulation that
burdens substantially more speech than is necessary. |
| [69] | Had the majority not abandoned the narrow tailoring requirement, the Guidelines
could not possibly survive constitutional scrutiny. Government's interest
in avoiding loud sounds cannot justify giving government total control over
sound equipment, any more than its interest in avoiding litter could justify
a ban on handbill distribution. In both cases, government's legitimate goals
can be effectively and less intrusively served by directly punishing the
evil -- the persons responsible for excessive sounds and the persons who
litter. Indeed, the city concedes that it has an ordinance generally limiting
noise but has chosen not to enforce it. See Tr. of Oral. Arg. 5-6. *fn5 |
| [70] | By holding that the Guidelines are valid time, place, and manner restrictions,
notwithstanding the availability of less intrusive but effective means of
controlling volume, the majority deprives the narrow tailoring requirement
of all meaning. *fn6 Today, the
majority enshrines efficacy but sacrifices free speech. |
| [71] | II |
| [72] | The majority's Conclusion that the city's exclusive control of sound equipment
is constitutional is deeply troubling for another reason. It places the
Court's imprimatur on a quintessential prior restraint, incompatible with
fundamental First Amendment values. See Near v. Minnesota ex rel. Olson,
283 U.S. 697 (1931). Indeed, just as "usic is one of the oldest forms
of human expression," ante, at 790, the city's regulation is one of
the oldest forms of speech repression. In 16th- and 17th-century England,
government controlled speech through its monopoly on printing presses. See
L. Levy, Emergence of a Free Press 6 (1985). Here, the city controls the
volume and mix of sound through its monopoly on sound equipment. In both
situations, government's exclusive control of the means of communication
enables public officials to censor speech in advance of its expression.
See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 553 (1975). Under
more familiar prior restraints, government officials censor speech "by
a simple stroke of the pen," Emerson, The Doctrine of Prior Restraint,
20 Law & Contemp. Prob. 648, 657 (1955). Here, it is done by a single
turn of a knob. |
| [73] | The majority's implication that government control of sound equipment
is not a prior restraint because city officials do not "enjoy unguided
discretion to deny the right to speak altogether," ante, at 794, is
startling. In the majority's view, this case involves a question of "different
and lesser" magnitude -- the discretion to provide inadequate sound
for performers. But whether the city denies a performer a bandshell permit
or grants the permit and then silences or distorts the performer's music,
the result is the same -- the city censors speech. In the words of Chief
Justice Rehnquist, the First Amendment means little if it permits government
to "allo a speaker in a public hall to express his views while denying
him the use of an amplifying system." FEC v. National Conservative
Political Action Committee, 470 U.S. 480, 493 (1985); see also Southeastern
Promotions, supra, at 556, n. 8 ("A licensing system need not effect
total suppression in order to create a prior restraint"). |
| [74] | As a system of prior restraint, the Guidelines are presumptively invalid.
See Southeastern Promotions, supra, at 558; Bantam Books, Inc. v. Sullivan,
372 U.S. 58, 70 (1963). They may be constitutional only if accompanied by
the procedural safeguards necessary "to obviate the dangers of a censorship
system." Freedman v. Maryland, 380 U.S. 51, 58 (1965). The city must
establish neutral criteria embodied in "narrowly drawn, reasonable
and definite standards," in order to ensure that discretion is not
exercised based on the content of speech. Niemotko v. Maryland, 340 U.S.
268, 271 (1951); see also Lakewood v. Plain Dealer Publishing Co., 486 U.S.,
750, 758 (1988); Shuttlesworth v. Birmingham, 394 U.S. 147, 150-151 (1969).
Moreover, there must be "an almost immediate judicial determination"
that the restricted material was unprotected by the First Amendment. Bantam
Books, supra, at 70; see also Southeastern Promotions, supra, at 560. |
| [75] | The Guidelines contain neither of these procedural safeguards. First,
there are no "narrowly drawn, reasonable and definite standards"
guiding the hands of the city's sound technician as he mixes the sound.
The Guidelines state that the goals are "to provide the best sound
for all events" and to "insure appropriate sound quality balanced
with respect for nearby residential neighbors and the mayorally decreed
quiet zone." App. 375; see also ante, at 794. But the city never defines
"best sound" or "appropriate sound quality." The bandshell
program director-manager testified that quality of sound refers to tone
and to sound mix. App. 229, 230. Yet questions of tone and mix cannot be
separated from musical expression as a whole. See The New Grove Dictionary
of Music and Musicians 51-55 (S. Sadie ed. 1980) (tonality involves relationship
between pitches and harmony); F. Everest, Successful Sound System Operation
173 (1985) ("The mixing console . . . must be considered as a creative
tool"). Because judgments that sounds are too loud, noiselike, or discordant
can mask disapproval of the music itself, *fn7
government control of the sound-mixing equipment necessitates detailed and
neutral standards. |
| [76] | The majority concedes that the standards in the Guidelines are "undoubtedly
flexible" and that "the officials implementing them will exercise
considerable discretion." Ante, at 794. Nevertheless, it concludes
that "y its own terms the city's sound-amplification guideline must
be interpreted to forbid city officials purposefully to select inadequate
sound systems or to vary the sound quality or volume based on the message
being delivered by performers." Ante, at 794-795. Although the majority
wishes it were so, the language of the Guidelines simply does not support
such a limitation on the city's discretion. Alternatively, the majority
finds a limitation in the city's practice of deferring to the sponsor with
respect to sound mix, and of conferring "with the sponsor if any questions
of excessive sound arise, before taking any corrective action." 658
F. Supp. 1346, 1352 (SDNY 1987). A promise to consult, however, does not
provide the detailed "neutral criteria" necessary to prevent future
abuses of discretion any more than did the city's promise in Lakewood to
deny permit applications only for reasons related to the health, safety,
or welfare of Lakewood citizens. Indeed, a presumption that city officials
will act in good faith and adhere to standards absent from a regulation's
face is "the very presumption that the doctrine forbidding unbridled
discretion disallows." Lakewood, supra, at 770. *fn8 |
| [77] | Second, even if there were narrowly drawn guidelines limiting the city's
discretion, the Guidelines would be fundamentally flawed. For the requirement
that there be detailed standards is of value only so far as there is a judicial
mechanism to enforce them. Here, that necessary safeguard is absent. The
city's sound technician consults with the performers for several minutes
before the performance and then decides how to present each song or piece
of music. During the performance itself, the technician makes hundreds of
decisions affecting the mix and volume of sound. Tr. of Oral Arg. 13. The
music is played immediately after each decision. There is, of course, no
time for appeal in the middle of a song. As a result, no court ever determines
that a particular restraint on speech is necessary. The city's admission
that it does not impose sanctions on violations of its general sound ordinance
because the necessary litigation is too costly and time consuming only underscores
its contempt for the need for judicial review of restrictions on speech.
Id., at 5. With neither prompt judicial review nor detailed and neutral
standards fettering the city's discretion to restrict protected speech,
the Guidelines constitute a quintessential, and unconstitutional, prior
restraint. |
| [78] | III |
| [79] | Today's decision has significance far beyond the world of rock music.
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. Because
such a result eviscerates the First Amendment, I Dissent. |
|
|
|
| Opinion Footnotes | |
|
|
|
| [80] | * Briefs of amici curiae urging reversal were filed for the United States
by Solicitor General Fried, Assistant Attorney General Bolton, Deputy Solicitor
General Ayer, Stephen L. Nightingale, and John F. Cordes; and for the National
League of Cities by Benna Ruth Solomon, Joyce Holmes Benjamin, and Ogden
N. Lewis. |
| [81] | *fn1 The amplified sound heard
at a rock concert consists of two components, volume and mix. Sound produced
by the various instruments and performers on stage is picked up by microphones
and fed into a central mixing board, where it is combined into one signal
and then amplified through speakers to the audience. A sound technician
is at the mixing board to select the appropriate mix, or balance, of the
various sounds produced on stage, and to add other effects as desired by
the performers. In addition to controlling the sound mix, the sound technician
also controls the overall volume of sound reaching the audience. During
the course of a performance, the sound technician is continually manipulating
various controls on the mixing board to provide the desired sound mix and
volume. The sound technician thus plays an important role in determining
the quality of the amplified sound that reaches the audience. |
| [82] | *fn2 In pertinent part, the Use
Guidelines provide: |
| [83] | "SOUND AMPLIFICATION |
| [84] | "To provide the best sound for all events Department of Parks and
Recreation has leased a sound amplification system designed for the specific
demands of the Central Park Bandshell. To insure appropriate sound quality
balanced with respect for nearby residential neighbors and the mayorally
decreed quiet zone of Sheep Meadow, all sponsors may use only the Department
of Parks and Recreation sound system. DEPARTMENT OF PARKS AND RECREATION
IS TO BE THE SOLE AND ONLY PROVIDER OF SOUND AMPLIFICATION, INCLUDING THOUGH
NOT LIMITED TO AMPLIFIERS, SPEAKERS, MONITORS, MICROPHONES, AND PROCESSORS. |
| [85] | "Clarity of sound results from a combination of amplification equipment
and a sound technician's familiarity and proficiency with that system. Department
of Parks and Recreation will employ a professional sound technician will
be fully versed in sound bounce patterns, daily air currents, and sound
skipping within the Park. The sound technician must also consider the Bandshell's
proximity to Sheep Meadow, activities at Bethesda Terrace, and the New York
City Department of Environmental Protection recommendations." App.
375-376. |
| [86] | *fn3 The court invalidated certain
other aspects of the Use Guidelines, but those provisions are not before
us. |
| [87] | *fn4 As noted above, there is
evidence to suggest that volume control and sound mix are interrelated to
a degree, in that performers unfamiliar with the acoustics of the bandshell
sometimes attempt to compensate for poor sound mix by increasing volume.
App. 218, 290-291. By providing adequate sound equipment and professional
sound mixing, the city avoids this problem. |
| [88] | *fn5 The Dissent's suggestion
that the guideline constitutes a prior restraint is not consistent with
our cases. See post, at 808-809. As we said in Southeastern Promotions,
Ltd. v. Conrad, 420 U.S. 546 (1975), the regulations we have found invalid
as prior restraints have "had this in common: they gave public officials
the power to deny use of a forum in advance of actual expression."
Id., at 553. The sound-amplification guideline, by contrast, grants no authority
to forbid speech, but merely permits the city to regulate volume to the
extent necessary to avoid excessive noise. It is true that the city's sound
technician theoretically possesses the power to shut off the volume for
any particular performer, but that hardly distinguishes this regulatory
scheme from any other, government will always possess the raw power to suppress
speech through force, and indeed it was in part to avoid the necessity of
exercising its power to "pull the plug" on the volume that the
city adopted the sound-amplification guideline. The relevant question is
whether the challenged regulation authorizes suppression of speech in advance
of its expression, and the sound-amplification guideline does not. |
| [89] | *fn6 Respondent contends that
our decision last Term in Boos v. Barry, 485 U.S. 312 (1988), supports the
Conclusion that "a regulation is neither precisely drawn nor 'narrowly
tailored' if less intrusive means than those employed are available."
Brief for Respondent 27. In Boos we concluded that the government regulation
at issue was "not narrowly tailored; a less restrictive alternative
is readily available." 485 U.S., at 329 (citing Wygant v. Jackson Bd.
of Ed., 476 U.S. 267, 280, n. 6 (1986) (plurality opinion)). In placing
reliance on Boos, however, respondent ignores a crucial difference between
that case and this. The regulation we invalidated in Boos was a content-based
ban on displaying signs critical of foreign governments; such content-based
restrictions on political speech "must be subjected to the most exacting
scrutiny." 485 U.S., at 321. While time, place, or manner regulations
must also be "narrowly tailored" in order to survive First Amendment
challenge, we have never applied strict scrutiny in this context. As a result,
the same degree of tailoring is not required of these regulations, and least-restrictive-alternative
analysis is wholly out of place. For the same reason, the Dissent's citation
of Richmond v. J. A. Croson Co., 488 U.S. 469 (1989), is beside the point.
See post, at 806, n. 4. Croson, like Boos, is a strict-scrutiny case; even
the Dissent does not argue that strict scrutiny is applicable to time, place,
or manner regulations. |
| [90] | Our summary affirmance of Watseka v. Illinois Public Action Council, 796
F.2d 1547 (CA7 1986), aff'd, 479 U.S. 1048 (1987), is not to the contrary.
Although the Seventh Circuit in that case did adopt the least-restrictive-alternative
approach, see 796 F.2d, at 1553-1554, its judgment was also supported by
the alternative grounds that the regulation at issue did not serve to further
the stated governmental interests and did not leave open alternative channels
of communication. Id., at 1555-1558. As we have noted on more than one occasion:
"A summary Disposition affirms only the judgment of the court below,
and no more may be read into our action than was essential to sustain that
judgment." Anderson v. Celebrezze, 460 U.S. 780, 785, n. 5 (1983). |
| [91] | *fn7 The Dissent's attempt to
analogize the sound-amplification guideline to a total ban on distribution
of handbills is imaginative but misguided. See post, at 806-807. The guideline
does not ban all concerts, or even all rock concerts, but instead focuses
on the source of the evils the city seeks to eliminate -- excessive and
inadequate sound amplification -- and eliminates them without at the same
time banning or significantly restricting a substantial quantity of speech
that does not create the same evils. This is the essence of narrow tailoring.
A ban on handbilling, of course, would suppress a great quantity of speech
that does not cause the evils that it seeks to eliminate, whether they be
fraud, crime, litter, traffic congestion, or noise. See Martin v. Struthers,
319 U.S. 141, 145-146 (1943). For that reason, a complete ban on handbilling
would be substantially broader than necessary to achieve the interests justifying
it. |
| [92] | 1 The majority's reliance on Renton v. Playtime Theatres, Inc., 475 U.S.
41 (1986), is unnecessary and unwise. That decision dealt only with the
unique circumstances of "businesses that purvey sexually explicit materials,"
Id., at 49, and n. 2. Today, for the first time, a majority of the Court
applies Renton analysis to a category of speech far afield from that decision's
original limited focus. Given the serious threat to free expression posed
by Renton analysis, see Boos v. Barry, 485 U.S. 312, 335-337 (1988) (Brennan,
J., Concurring in part and Concurring in judgment); Renton, supra, at 55
(Brennan, J., Concurring in part and Concurring in judgment), I fear that
its broad application may encourage widespread official censorship. |
| [93] | 2 United States v. Albertini, 472 U.S. 675 (1985), for example, involved
a person's right to enter a military base, which, unlike a public park,
is not a place traditionally dedicated to free expression. Id., at 687 (commanding
officer's power to exclude civilians from a military base cannot "be
analyzed in the same manner as government regulation of a traditional public
forum"). Nor can isolated language from Justice White's opinion in
Regan v. Time, Inc., 468 U.S. 641, 657 (1984), which commanded the votes
of only three other Justices, be construed as this Court's definitive explication
of the narrow tailoring requirement. |
| [94] | 3 The majority relies heavily on Clark v. Community for Creative Non-Violence,
468 U.S. 288 (1984), but in that case, the Court engaged in an inquiry similar
to the one the majority now rejects; it considered whether the increased
efficacy of the challenged regulation warranted the increased burden on
speech. Id., at 299 ("reventing overnight sleeping will avoid a measure
of actual or threatened damage"; however, "minimiz the possible
injury by reducing the size, duration, or frequency of demonstrations would
still curtail the total allowable expression in which demonstrators could
engage"). |
| [95] | 4 In marked contrast, Members of the majority recently adopted a far more
stringent narrow tailoring requirement in the affirmative-action context.
See Richmond v. J. A. Croson Co., 488 U.S. 469, 507-508 (1989). |
| [96] | 5 Significantly, the National Park Service relies on the very methods
of volume control rejected by the city -- monitoring sound levels on the
perimeter of an event, communicating with event sponsors, and, if necessary,
turning off the power. Brief for United States as Amicus Curiae 21. In light
of the Park Service's "experienc with thousands of events over the
years," ibid., the city's claims that these methods of monitoring excessive
sound are ineffective and impracticable are hard to accept. |
| [97] | 6 Because I conclude that the Guidelines are not narrowly tailored, there
is no need to consider whether there are ample alternative channels for
communication. I note only that the availability of alternative channels
of communication outside a public park does not magically validate a government
restriction on protected speech within it. See Southeastern Promotions,
Ltd. v. Conrad, 420 U.S. 546, 556 (1975) ("'ne is not to have the exercise
of his liberty of expression in appropriate places abridged on the plea
that it may be exercised in some other place,'" quoting Schneider v.
State, 308 U.S. 147, 163 (1939)). |
| [98] | 7 "New music always sounds loud to old ears. Beethoven seemed to
make more noise than Mozart; Liszt was noisier than Beethoven; Schoenberg
and Stravinsky, noisier than any of their predecessors." N. Slonimsky,
Lexicon of Musical Invective: Critical Assaults on Composers Since Beethoven's
Time 18 (1953). One music critic wrote of Prokofiev: "Those who do
not believe that genius is evident in superabundance of noise, looked in
vain for a new musical message in Mr. Prokofiev's work. Nor in the Classical
Symphony, which the composer conducted, was there any cessation from the
orgy of discordant sounds." Id., at 5 (internal quotations omitted). |
| [99] | *fn8 Of course, if the city always
defers to a performer's wishes in sound mixing, then it is difficult to
understand the need for a city technician to operate the mixing console.
See Tr. of Oral. Arg. 12 (city concedes that the possibilities for a confrontation
over volume are the same whether the city technician directly controls the
mixing console or sits next to a performer's technician who operates the
equipment). Conversely, if the city can control sound only by using its
own equipment and technician, then it must not be heeding all the performer's
wishes on sound mixing. |
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