Appeal from orders of the United States District Court for the Southern District of New York, Charles S. Haight, Jr., Judge, declining to enjoin defendants from enforcing a Sound Amplification Guideline for events held at the Naumberg Bandshell in Central Park, New York City. Affirmed in part, reversed in part, and remanded with direction to modify injunction.
Feinberg, Chief Judge, Pratt, Circuit Judge and Dorsey, District Judge.*fn*
This appeal presents a question of balancing a first amendment right against a municipality's exercise of its police powers.
The Naumberg Bandshell is an open air public amphitheater on the west side of Central Park in the City of New York. Appellant, Rock Against Racism ("RAR"), is "an unincorporated association which describes itself as 'dedicated to the espousal and promotion of antiracist views.'" Rock Against Racism v. Ward, 658 F. Supp. 1346, 1348 (S.D.N.Y. 1987). Appellees are the city, its Mayor, police and park officials. All individuals are sued in their official capacities only.
Since 1979, RAR has sponsored, at the bandshell, an annual program of speakers representing groups opposed to racism, interspersed with musical groups. The city requires a permit for such use. In March 1986, after litigation between the city and RAR over the latter's attempts to obtain permits for the bandshell, the city's Department of Parks issued "Use Guidelines" to govern the granting of permits for and the staging of events at the bandshell. Sponsors must comply with the guidelines to obtain permits. Appellant brought suit challenging the guidelines as facially invalid as a prior restraint on activity protected by the first amendment. Judge Haight, after a five-day trial, permanently enjoined enforcement of some of the guidelines, but declined to enjoin the Sound Amplification Guideline ("SAG") at issue in this appeal. Rock Against Racism, 658 F. Supp. at 1360-61. The court later amended and clarified the injunction in an unpublished memorandum opinion and order in respects not relevant here. Memorandum Opinion and Order, No. 85 Civ. 3000-CSH (S.D.N.Y. Apr. 30, 1987) ("Memorandum"). Appellant challenges these rulings only to the extent of the court's failure to enjoin enforcement of the SAG.
Under the SAG, all sponsors of events at the bandshell must use a sound system and sound engineer supplied by the city, and no other equipment.*fn1 The city contracts with a private firm which supplies a sound system and technician approved by the city for each event. Thus, the volume, the sound "mix," and the overall sound quality are under the physical control of the city-supplied technician who answers to officials of the Department of Parks. During the musical program, this sound engineer presides at a "mixing board" which controls inputs (sound levels, bass, treble, etc.) from each instrument, performer, or microphone. By varying the sound mix, the sound engineer can control what the audience hears over the speaker system, including both the volume and the aesthetic result or sound quality. The district court found that the city's practice is to allow the sponsor to designate a representative to direct the city's engineer in controlling the sound mix while the city's park officials direct the engineer's control of the volume.*fn2
The net effect of the trial court's orders, as they are challenged in this appeal, is that the SAG was found to be lawful to the extent that it requires use of a city-provided sound system and city-employed technician to operate it subject to the direction of a representative of the musical performers as to the sound mix, but also subject to the city employee's sole determination when the volume level is excessive. RAR's appeal claims that the SAG, as thus enforced, violates its first amendment right of free expression and must be invalidated. Appellees contend that the SAG, as construed by the district court, is a proper exercise of police power.
There is no dispute but that the bandshell, a place traditionally "used for the purposes of assembly, communicating thoughts between citizens, and discussing public questions," is a public forum. Hague v. Committee For Industrial Organization, 307 U.S. 496, 515, 59 S. Ct. 954, 83 L. Ed. 1423 (1939) (opinion of Roberts, J.); Wolin v. Port of New York Authority, 392 F.2d 83, 88 (2d Cir.), cert. denied, 393 U.S. 940, 21 L. Ed. 2d 275, 89 S. Ct. 290 (1968). As such, the city's regulation of the bandshell's use is subject to the first amendment's limitations on government action which infringes upon the freedom of expression. "In such places, the government's ability to permissibly restrict expressive conduct is very limited." United States v. Grace, 461 U.S. 171, 177, 75 L. Ed. 2d 736, 103 S. Ct. 1702 (1983). This protection extends to the production and transmission of musical performances, as well as speech. See Cinevision Corp. v. City of Burbank, 745 F.2d 560, 567 (9th Cir. 1984), cert. denied, 471 U.S. 1054, 85 L. Ed. 2d 480, 105 S. Ct. 2115 (1985); Davenport v. City of Alexandria, 710 F.2d 148, 150 n.6 (4th Cir. 1983) (en banc); Goldstein v. Town of Nantucket, 477 F. Supp. 606, 608 (D. Mass. 1979); see also Tele-Communications of Key West, Inc. v. United States, 244 U.S. App. D.C. 335, 757 F.2d 1330, 1337 (D.C. Cir. 1985) (packaging and transmitting television programs, even without original production, protected by first amendment).
Under certain circumstances, the city has the right to regulate expressive conduct which has harmful effects on others. See Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 804, 80 L. Ed. 2d 772, 104 S. Ct. 2118 (1984); see also City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50, 89 L. Ed. 2d 29, 106 S. Ct. 925 (1986) ("a city's 'interest in attemption to preserve the quality of urban life is one that must be accorded high respect'") (citation omitted); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 297, 82 L. Ed. 2d 221, 104 S. Ct. 3065 (1984) (where parks would be "more exposed to harm without the sleeping prohibition than with it," ban on sleeping in parks is a reasonable regulation). Content 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. Community for Creative Non-Violence, 468 U.S. at 295; see City of Renton, 475 U.S. at 50; Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771, 48 L. Ed. 2d 346, 96 S. Ct. 1817 (1976) (reasonable time, place and manner restrictions on commercial speech are permissible provided they are content neutral, serve a significant governmental interest, and leave open ample alternative channels). However, 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. United States v. O'Brien, 391 U.S. 367, 377, 20 L. Ed. 2d 672, 88 S. Ct. 1673 (1968); Legi-Tech Services, Inc. v. Keiper, 766 F.2d 728, 735 (2d Cir. 1985). See United States v. Albertini, 472 U.S. 675, 688-89, 86 L. Ed. 2d 536, 105 S. Ct. 2897 (1985) ("an incidental burden on speech is not greater than essential, and therefore is permissible under O'Brien, so long as the neutral regulation promotes a substantial government interest that would be achieved less effectively absent the regulation").
Here, the city's express purpose is to prevent the noise generated at the bandshell from intruding offensively upon those who do not choose to attend or hear the musical presentation.*fn3 Noise levels may be regulated. Grayned v. City of Rockford, 408 U.S. 104, 116, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972); Kovacs v. Cooper, 336 U.S. 77, 87-89, 93 L. Ed. 513, 69 S. Ct. 448 (1949); cf. Reeves v. McConn, 631 F.2d 377, 386-87 (5th Cir. 1980) (holding that city may establish maximum wattage limits for amplified sound, but declaring ordinance unconstitutional where city failed to justify 20-watt limit), reh'g denied, 638 F.2d 762 (1981). The city could lawfully accomplish this purpose by establishing and enforcing reasonable limits on the volume, or noise level, emanating from the band shell. See, e.g., Jim Crockett Promotion, Inc. v. City of Charlotte, 706 F.2d 486, 493 (4th Cir. 1983) (upholding ordinance limiting decibel levels as measured by standard metering techniques). The city could impose a reasonable limit on the maximum power of the amplification equipment to be used. See Reeves, 631 F.2d at 386-87.
Appellant makes no claim that the volume level has been set below that necessary to carry its message. Appellant does assert that the volume limitations allow the city to discriminate against different sponsors by varying the volume permitted. We do not think the regulations are impermissible on their face--they imply that listeners in the band shell area should be able to hear the performance, but others should not necessarily be obliged to listen to it. If the regulations are being unconstitutionally applied in a discriminatory manner, appellant may bring an appropriate suit. Appellant also claims that the mix of the input from the performers and their several instruments is essential to the artistic presentation and interpretation and that the choice of sound system, its quality, components, and capacity are essential factors in that presentation, as is the technician who operates it. These claims are not controverted in the record. Appellant argues that the SAG impinges on its protected interest in controlling the sound mix of its concerts.*fn4 The city makes no claim that it may regulate the sound mix, but only the volume. The SAG requires use of the city's sound system and technician, who not only controls the volume emitted from the speaker system to limit the measurable noise level ...