Casey v. City of Newport, RI

308 F.3d 106, 2002 U.S. App. LEXIS 21538, 2002 WL 31310816
CourtCourt of Appeals for the First Circuit
DecidedOctober 16, 2002
Docket01-2600
StatusPublished

This text of 308 F.3d 106 (Casey v. City of Newport, RI) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Casey v. City of Newport, RI, 308 F.3d 106, 2002 U.S. App. LEXIS 21538, 2002 WL 31310816 (1st Cir. 2002).

Opinions

LIPEZ, Circuit Judge.

This case requires us to assess the constitutionality of restrictions imposed by the City of Newport, Rhode Island (City), on the performance of music at Asterix and Obelix (A & 0), a Newport restau-ranVnightclub. The district court rejected a First Amendment challenge to the restrictions mounted by A & 0 and Laurel Casey, a cabaret singer who performs at A & 0, and entered summary judgment for the City on the ground that the restrictions were narrowly tailored to serve a significant governmental interest. Concluding that the district court’s narrow-tailoring decision lacks support in the record, we vacate the judgment and remand for further proceedings.

I.

A & 0 is located at 599 Thames Street in Newport. The property is zoned “limited business” and abuts a residential neighborhood. In June of 1998 A & 0 was granted an entertainment license permitting musical performances, pursuant to Newport, R.I., Ordinances ch. 5.68 (Public Entertainment). The word “None” was typed next to the word “Amplification” on the approved application. On June 4, 1999, Casey performed at A & 0 with her voice amplified, accompanied by an amplified bass and an unamplified piano. That evening A & 0 was cited for violating the City’s noise ordinance. Newport, R.I., Ordinances ch. 8.12 (Noise Abatement) (setting maximum decibel level of 75 for districts zoned “limited business”). Casey explained the events which gave rise to the violation of the noise ordinance at a City Council hearing on June 9:

Now, to tell you the truth, it was my fault last Friday that we went over the ... Noise Ordinance. A person in the audience requested that I sing from an operetta and I began to sing a portion of Rinaldo. There are several high notes that go above high note C in R[i]naldo and it was those high notes apparently that shot us off the scale.

The complaint against A & 0 was subsequently dismissed. As far as the record reveals, A & 0 was not cited for violating the terms of its entertainment license.

On June 9, 1999, the City Council held a hearing on A & O’s application for a renewed license that would permit amplification. Residents of the neighborhood voiced displeasure with the noise emanating from A & 0 during musical performances. The Council voted to renew A & O’s entertainment license, but with the no-amplification restriction still in place, and with an added prohibition against singing (whether amplified or not).

On June 18, 1999, Casey filed a complaint against the City in federal district court seeking declaratory and injunctive relief and damages under 42 U.S.C. § 1983 on the ground that the no-singing and no-amplification restrictions violated her right to free expression under the First Amendment. On June 23, 1999, the Council removed the no-singing restriction, which it had imposed in the mistaken belief that A & O’s previous license had included the same restriction.1 The no-amplification restriction, however, remained in force. The [110]*110Council also required that A & 0 keep its doors and windows closed during musical performances.2 A First Amended Complaint was filed on July 9, 1999, adding A & O as a plaintiff.

On May 1, 2000, the Council again renewed A & O’s entertainment license, this time with amplification of singing allowed, but amplification of musical instruments forbidden. A Second Amended Complaint filed on July 31, 2000, added a count challenging the ban on amplification of instruments effective as of June 2000. After the parties filed cross-motions for summary judgment, the district court granted summary judgment for the City on October 24, 2001, holding that the challenged restrictions were valid time, place, and manner regulations that did not infringe upon the plaintiffs’ First Amendment rights. Plaintiffs filed this timely appeal in which they ask us to vacate the judgment of the district court and order the entry of a judgment declaring that the City’s license restrictions are unconstitutional, enjoining their enforcement, and leaving the question of damages for the district court on remand.

II.

We review the district court’s grant of summary judgment for the City de novo, examining the record in the light most favorable to Casey and A & O and drawing all reasonable inferences in their favor. We affirm the district court’s decision only if “there is no genuine issue of material fact” and the City “is entitled to judgment as a matter of law.” See Knights of Columbus, Council # 94 v. Town of Lexington, 272 F.3d 25, 30 (1st Cir.2001). Here we focus on the legal question of whether the challenged restrictions violate the First Amendment. See id.

“Music, as a form of expression and communication, is protected under the First Amendment.” Ward v. Rock Against Racism, 491 U.S. 781, 790, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). Expression need not include words to qualify for First Amendment protection. The Supreme Court has said that “a narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a ‘particularized message,’ would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll.” Hurley v. Irislu-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 569, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) (citation omitted). Thus it is not just Casey’s verbal expression, but also the musical sound she and her band produce, that is protected under the First Amendment.

Nevertheless, “the government may impose reasonable restrictions on the time, place, or manner of protected speech,” if those restrictions are (1) content neutral; (2) narrowly tailored to serve a significant governmental interest; and (3) leave open ample alternative channels of communication. Ward, 491 U.S. at 791, 109 S.Ct. 2746. We have described our review under this standard as “intermediate scrutiny.” Nat’l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 736 (1st Cir.1995). Intermediate scrutiny is “more demanding than the ‘rational basis’ standard that is often used to gauge the constitutionality of economic regulations,” id., but less rigorous than strict scrutiny, where we inquire “whether a regulation ‘is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.’ ” Id. (quoting Arkansas Writ[111]*111ers’ Project Inc. v. Ragland, 481 U.S. 221, 231, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987)). If a regulation of speech is not narrowly tailored to serve a significant governmental interest, it cannot be deemed constitutional. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 668, 114 S.Ct.

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Bluebook (online)
308 F.3d 106, 2002 U.S. App. LEXIS 21538, 2002 WL 31310816, Counsel Stack Legal Research, https://law.counselstack.com/opinion/casey-v-city-of-newport-ri-ca1-2002.