Ward v. Rock Against Racism/Dissent Marshall

by Thurgood Marshall

Justice MARSHALL, with whom Justice BRENNAN and Justice STEVENS join, dissenting.

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.

* 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, 108 S.Ct. 2495, 2500-2501, 101 L.Ed.2d 420 (1988); Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 44, 103 S.Ct. 948, 953, 74 L.Ed.2d 794 (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, 106 S.Ct. 903, 914, 89 L.Ed.2d 1 (1985). ^[1] They also serve government's significant interest in limiting loud noise in public places, see Grayned v. Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222 (1972), by giving the city exclusive control of all sound equipment.

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." Fr sby v. Schultz, supra, 487 U.S., at 485, 108 S.Ct., at 2503. While there is language in a few opinions which, taken out of context, supports the majority's position, ^[2] 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, 63 S.Ct. 862, 866-867, 87 L.Ed. 1313 (1943); Schneider v. State, 308 U.S. 147, 162, 60 S.Ct. 146, 151, 84 L.Ed. 155 (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, 60 S.Ct., at 151, 152; see also Martin, supra, 319 U.S., at 148, 63 S.Ct., at 867 (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). ^[3]

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. ^[4] 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.

True, the majority states that "[g]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 [and] 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[red] 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.

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. ^[5]

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. ^[6] Today, the majority enshrines efficacy but sacrifices free speech.

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, 51 S.Ct. 625, 75 L.Ed. 1357 (1931) Indeed, just as "[m]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, 95 S.Ct. 1239, 1243, 43 L.Ed.2d 448 (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.

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[w] 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, 105 S.Ct. 1459, 1466, 84 L.Ed.2d 455 (1985); see also Southeastern Promotions, supra, 420 U.S., at 556, n. 8, 95 S.Ct., at 1246, n. 8 ("A licensing system need not effect total suppression in order to create a prior restraint").

As a system of prior restraint, the Guidelines are presumptively invalid. See Southeastern Promotions, supra, at 558, 95 S.Ct., at 1248; Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (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, 85 S.Ct. 734, 740, 13 L.Ed.2d 649 (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, 71 S.Ct. 325, 327, 95 L.Ed. 267 (1951); see also Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 758, 108 S.Ct. 2138, 2144, 100 L.Ed.2d 771 (1988); Shuttlesworth v. Birmingham, 394 U.S. 147, 150-151, 89 S.Ct. 935, 938-939, 22 L.Ed.2d 162 (1969). Moreover, there must be "an almost immediate judicial determination" that the restricted material was unprotected by the First Amendment. Bantam Books, supra, 372 U.S., at 70, 83 S.Ct., at 639; see also Southeastern Promotions, supra, 420 U.S., at 560, 95 S.Ct., at 1250.

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 G ove 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, ^[7] government control of the sound-mixing equipment necessitates detailed and neutral standards.

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 "[b]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, 486 U.S., at 770, 108 S.Ct., at 2151. ^[8]

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 th t 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.

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.

Notes

1. The majority's reliance on Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (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, 106 S.Ct., at 929, 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, 108 S.Ct. 1157, 1171-1172, 99 L.Ed.2d 333 (1988) (BRENNAN, J., concurring in part and concurring in judgment); Renton, supra, 475 U.S., at 55, 106 S.Ct., at 933 (BRENNAN, J., concurring in part and concurring in judgment), I fear that its broad application may encourage widespread official censorship.
2. United States v. Albertini, 472 U.S. 675, 105 S.Ct. 2897, 86 L.Ed.2d 536 (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, 105 S.Ct., at 2905 (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, 104 S.Ct. 3262, 3271, 82 L.Ed.2d 487 (1984), which commanded the votes of only three other Justices, be construed as this Court's definitive explication of the narrow tailoring requirement.
3. The majority relies heavily on Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (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, 104 S.Ct., at 3070 ("[P]reventing overnight sleeping will avoid a measure of actual or threatened damage"; however, "minimiz[ing] the possible injury by reducing the size, duration, or frequency of demonstrations would still curtail the total allowable expression in which demonstrators could engage").
4. In marked contrast, Members of the majority recently adopted far more stringent narrow tailoring requirement in the affirmative-action context. See Richmond v. J.A. Croson Co., 488 U.S. 469, 507-508, 109 S.Ct. 706, 729-730, 102 L.Ed.2d 854 (1989).
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[e] 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.
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, 95 S.Ct. 1239, 1246, 43 L.Ed.2d 448 (1975) (" '[O]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, 60 S.Ct. 146, 151, 84 L.Ed. 155 (1939)).
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).
8. 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.