SOUND AMPLIFICATION REQUIREMENTS FOR PARK CONCERTS CHALLENGED
WARD v. ROCK AGAINST RACISM491 U.S. 781 (1989)
United States Supreme Court
June 22, 1989In this case, plaintiff Rock Against Racism argued that sound-amplification regulations by the City of New York were an unconstitutional violation of First Amendment free speech rights. The facts of the case were as follows:
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.
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.... In pertinent part, the Use Guidelines provide:
SOUND AMPLIFICATION
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 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.Rock Against Racism [RAR] is an unincorporated association which, in its own words, is "dedicated to the espousal and promotion of antiracist views." 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 technicians used by the various performing groups at these annual events.
Over the years, the city received numerous complaints about excessive sound amplification at RAR'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.
The following year, when RAR 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 RAR agreed to abide by all applicable regulations, the parties reached agreement and a permit was issued.
The city then undertook to develop Use Guidelines for the 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. 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 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.
The city considered various solutions to the sound amplification problem. The ides 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. 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. 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 and 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.
The Use Guidelines were promulgated on March 21, 1986. After learning that it would be expected to comply with the guidelines at its upcoming annual concert in May 1986, RAR 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. 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.
Following the concert, RAR returned to federal district court to have the guidelines declared invalid. The district court, however, upheld the city's sound-amplification guidelines. According to the district court, the city's regulation of constitutionally protected speech was a reasonable and, therefore, valid time, place, and manner restriction. RAR appealed. The federal appeals court reversed. In the opinion of the federal appeals court, "the sound-amplification guideline was invalid because the city had failed to prove that its regulation was the least intrusive means regulating the volume" given "the potential availability" of the following "seemingly less restrictive alternatives."
Content neutral time, place and manner restrictions 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 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. Applying this test... 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 RAR's ability to control the sound mix. For example, the city could have directed RAR'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.
The United States Supreme Court granted review of this decision "to clarify the legal standard applicable to governmental regulation of time, place, or manner of protected speech." (Justice Kennedy delivered the opinion of the Court.)
As noted by the Court: "Music, as a form of expression and communication, is protected under the First Amendment."
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. The Constitution prohibits any like attempts in our own legal order... In the case before us the performance 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 guidelines must meet the demands of the First Amendment.
As described by the Court, "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. 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.
In determining whether the challenged guideline was content neutral and a valid time, place, or manner restriction, the Court stated that the "principal inquiry" was "whether the government has adopted a regulation of speech because of disagreement with the message it conveys."
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. Government regulation of expressive activities is content-neutral so long as it is justified without reference to the content of the regulated speech.
Applying these principles to the facts of the case, the Court noted that "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." Accordingly, the Court found that the city's "justification for the guideline has nothing to do with content." The Court, therefore, concluded the challenged guideline "satisfies the requirement that time, place, or manner regulations be content-neutral."
On appeal, RAR had argued 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." Specifically, RAR argued that "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." The Supreme Court rejected this argument.
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 the respect for nearby residential neighbors and the mayorally decreed quiet zone of the Sheep Meadow." 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... 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.
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 the sponsor's desires concerning sound quality. With respect to sound volume, the city retains ultimate control, but city officials make it a practice to confer with the sponsor if any questions of excessive sound arise, before taking any corrective action. The city's goal of ensuring that the sound amplification is sufficient to reach all listeners within the defined concertground serves to limit further the discretion of the officials on the scene. Administrative interpretation and implementation of a regulation is, of course, highly relevant to our analysis, for in 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. Any inadequacy on the face of the guideline would have been more than remedied by the city's narrowing construction.
In addition, the Supreme Court found the city's guideline to be "narrowly tailored to serve a significant governmental interest."
Despite RAR's protestations to the contrary, it can no longer be doubted that government has a substantial interest in protecting its citizens from unwelcome noise. This interest is perhaps at its greatest when government seeks to protect the well-being, tranquility, and privacy of the home, 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.
We think it is 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.
While recognizing "the city's substantial interest in limiting the sound emanating from the Bandshell," the federal appeals court had found that "the city's sound-amplification guideline was not narrowly tailored to further this interest." Specifically, the appeals court found that it had "not been shown that the requirement of the use of the city's sound system and technician was the least intrusive means of regulating the volume." (Emphasis of court.) As a result, the appeals court had concluded that "there were several alternative methods of achieving the desired end that would have been less restrictive of RAR's First Amendment rights."
In the opinion of the Supreme Court, the appeals court had "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." According to the Court, "this 'less-restrictive-alternative analysis' has never been a part of the inquiry into the validity of a time, place, and manner regulation." On the contrary, the Court stated that "our cases quite clearly hold that restrictions on time, place, or manner of protected speech are not invalid simply because there is some imaginable alternative that might be less burdensome on speech."
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. 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.
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. 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 should be promoted.
Applying these principles to the facts of the case, the Supreme Court found that the federal appeals court "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."
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 RAR'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.
The Supreme Court also considered the city's argument that the challenged guideline was justified because it ensured "that the sound amplification is sufficient to reach all listeners within the defined concertground."
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 RAR's concerts, which 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. Considering these proffered justifications together, therefore, it is apparent that the guideline directly furthers the city legitimate governmental interests and that those interests would have been less well served in the absence of the sound-amplification guideline.
RAR had argued, however, 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 over sound volume." According to RAR, "the guideline targets more than the exact source of the 'evil' it seeks to remedy." The Supreme Court rejected this argument.
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, RAR's concerns would have considerable force. The District Court found, however, that pursuant to the city policy, the city's sound technician gives the sponsor autonomy with respect to the sound mix and does all that he can to accommodate the sponsor's desires in those regards. The court squarely rejected RAR's claim that the city's technician is not able properly to implement a sponsor's instruction as to sound quality or mix, finding that no evidence to that effect was offered at trial; as noted, the evidence is to the contrary. 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 mix, it is not substantially broader than necessary to achieve the city legitimate ends, and thus it satisfies the requirement of narrow tailoring.
Finally, the Supreme Court considered the requirement that "the guideline leave open ample alternative channels of communication." In the opinion of the Supreme Court, this requirement "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. 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 RAR's speech is of no consequence, for there has been showing that the remaining avenues of communication are inadequate.
The Supreme Court, therefore, reversed the judgment of the Court of Appeals which had found the city's guideline unconstitutional.
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 concertground, 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.