The IdoLawyer Turns It Up To 11

Brian Raftery | May 3, 2007 3:55 am

Editor’s note: Aside from a few Clash lyrics, your Idolators know nothing about the law. Which is why we’re proud to present another missive from the IdoLawyer, an anonymous California attorney who will be weighing in on various music-related matters. While her column isn’t intended as legal advice, it is sage advice nonetheless, and today she takes a look at connection between the Supreme Court and supremely overcrowded music festivals:

Summer festival season is upon us, and now is as good a time as any to consider why festivals have to be held in either 108-degree sweatboxes (Coachella Valley) or cowpie-country fields (Glastonbury). In one of its most important non-fetus-related cases ev-er, the Supreme Court addressed that great political tradition: the outdoor putatively-for-a-cause rock concert. The case sounds trivial at first–it involves noise regulations–but is in fact a benchmark of the law that governs how cities can regulate free expression.

Back in 1986, organizers of the Rock Against Racism concert were gearing up for a political punk-rock show, and while they were probably hoping to achieve some do-gooding recognition, establishing a First Amendment standard was likely not on the set list. The promoters had booked the famous Naumberg Bandshell in Central Park, but due to noise complaints in previous years, New York City was now requiring that anyone playing the bandshell had to use the city’s own sound equipment and sound technician. This was censorship, the promoters said, and way, way un-American (incidentally, Rock Against Racism was founded in the UK).

Ergo, lawsuit.

We don’t really think about noise rules as worthy of Supreme Court justice-hours, but because rock concerts are only a few logical steps away from political protests, you can see how figuring out these rules would be important. For this case, the Court literally had to learn how to rock: In the very first footnote of the opinion, the Court gives a detailed explanation of how sound mixing works at a live concert (“During the course of a performance, the sound technician is continually manipulating various controls on the mixing board to provide the desired sound mix and volume,” e.g.). The Court also explains just why the city’s rule was necessary (roadies, it turns out, don’t know how to run the mixboard in outdoor performances). So when rock bands playing the bandshell discovered that their sound would be muffled by the Central Park elms, they compensated by turning up their amps. As a result, their sound not only sucked, it sucked very, very loudly.

City sound technicians, however, had a better idea of how to sound-blast the Sheep Meadow in a way that kept residents of the Dakota and other CPW addresses content. So the city required all bands to hire these technicians or let them supervise the band’s own crew.

The Court ultimately upheld the sound technician rule, which regulated the “time, place and manner” of speech. Cities are allowed to regulate TPM (the old bar-studying abbreviation) as long as their rules don’t pick and choose between the content of what’s being expressed, serve some significant government interest, are “narrowly tailored,” and leave open other channels for expression. When cities require permits for protests or when they ban billboards, this same standard applies.

The Rock Against Racism case, however, importantly defined what it means to be “narrowly tailored.” The purpose of this standard is to make sure the law doesn’t hit you with a sledgehammer when a light love tap will do. The majority opinion, penned by Justice Kennedy, says a law is narrowly tailored if it doesn’t “burden substantially more speech than necessary” to accomplish the city’s goal. In other words, even if a law could stand to be more precise, the Court will let it slide if it isn’t too, too terrible.

By contrast, the dissenting opinion, penned by liberal rock star Justice Marshall, would have required the law to be the least restrictive way to get the job done. Record producers around the world should light a candle for the spirit of Justice Marshall and give his opinion a read; he forcefully argues that the government’s control of the mixing board effectively controls the band’s self-expression. This was an unconstitutional prior restraint. In his own killer footnote, Marshall quoted a music-history book: “New music always sounds loud to old ears.” That’s cold, man.

WARD v. ROCK AGAINST RACISM, 491 U.S. 781 (1989) [FindLaw.com]

Tags: