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Laekna Health Coachi Group

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Bronislav Odintsov
Bronislav Odintsov

Sound Providers An Evening With The Sound Providers Rar 1

This guideline would require RAR to abandon its own system, which it used without complaint by the City last year, and use different equipment whose knobs and dials would be twisted by the hands of strangers in point of fact, private contractors hired by the City but paid for by RAR. It is recognized that "live musical expression is protected by the first amendment." Cinevision Corp. v. City of Burbank, 745 F.2d 560, 569 (9th Cir. 1984). I agree with RAR that, absent significant governmental interest requiring a different result, that protection extends not only the words and songs presented but also the sound which actually emanates from the amplification system. That sound may be substantially affected by the amplification system itself and who controls it. To paraphrase the old song: "The music goes round and round, but it comes out here."

Sound Providers An Evening With The Sound Providers Rar 1


Here there is no significant government interest. RAR acknowledges this year, as it did last year, the constitutional validity of those general park regulations which limit sound. Defendants do not suggest that RAR, using its own equipment, breached those regulations last year. There is no reason to assume it will this year. As a general rule, prospective restraints even of criminal behavior are unconstitutional. Fernandes v. Limmer, 663 F.2d 619, 628 (5th Cir.1981), rehearing denied, 669 F.2d 729, cert. denied, 458 U.S. 1124, 103 S. Ct. 5, 73 L. Ed. 2d 1395 (1982).

The cost elements are: a $100 fee to process the application; the $100 per hour sound system use charge; a $1,000 cleanup bond; and the cost (as yet undetermined) of obtaining a one-day liability policy in the amount the defendant requires: $1 million/$3 million.

The remaining dispute relates to the hours of the event. It is not entirely clear, from the briefs as amplified by oral argument, what the boundaries of this dispute are, or indeed if there is one. The remarks of defendants' counsel at argument sounded, at one point, as if defendants were offering the same bloc of time to RAR this year that RAR used last year.

In view of the holding that RAR may use its own sound system, the hours for setting the equipment up and taking it down again will be modeled upon the procedures followed without controversy last year.

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 preexisting 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.

(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. 491 U. S. 791-796.

(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, 468 U. S. 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. 491 U. S. 796-802.


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