The opinion of the court was delivered by: HAIGHT
MEMORANDUM OPINION AND ORDER
The parties are again before the Court within the context of plaintiff Rock Against Racism's ("RAR") annual concert in Central Park. I say "again" because this litigation was generated by last year's concert. This year's concert is scheduled for May 4, 1986, at the Naumberg Bandshell between the Mall and Bethesda Terrace. RAR seeks, on First Amendment grounds, an injunction prohibiting defendants from applying to RAR certain guidelines drafted by the Department of Parks and REcreation for use of that locality.
Commissioner Henry J. Stern promulgated those guidelines under date of March 21, 1986. They were the work product of Joseph Killian, program director for that much-used area of the park. Mindful of various organizations' applications to hold events there, Killian contacted them. One of these was RAR. It is not disputed that Killian telephoned RAR representatives on Monday, March 24, to advise them of the issuance of the use guidelines. RAR acknowledges receiving a copy at "the end of March, 1986." Brief at 2. RAR filed this application on April 23. To give defendants some time to confront the constitutional issues, I made the motion returnable on May 1, when oral argument was heard.
The timing does not permit extended analysis or discussion. It also has consequences for which RAR is responsible. This application was unduly delayed. Based on past history, RAR could have had no reasonable expectation that defendants would waive these guidelines on RAR's request. In any event, on April 9, Killian advised RAR's counsel, James Fosbinder, that the guidelines would be enforced. Mr. Fosbinder thereupon left to conduct a trial in Arizona. No arrangements were made to bring the dispute to the Court before April 23. No evidentiary record exists except the opposing affidavits. In these circumstances, RAR is entitled to relief only to the extent that such entitlement appears as a matter of law from the fact of the papers.
In prior years, including last year, RAR used its own sound system.
The guidelines provide that the Department "is the sole and only provider of sound amplification"; a "user fee of $100 per performance hour, plus a one hour sound check is charged."
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 hand 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 should 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."
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, 73 L. Ed. 2d 1395, 103 S. Ct. 5 (1982).
RAR complains of the increased cost of obtaining this year's permit.
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 ...