236 Conn. 781 | Conn. | 1996
Lead Opinion
The sole issue in this appeal is whether the trial court properly concluded that General Statutes § 7-284
The plaintiff is David Morascini, who, in 1990, was the owner and operator of the Palace Cafe and Restaurant (Palace), a nightclub located in Stafford Springs. The defendants are Nicholas A. Cioffi, the commissioner of public safety and the commanding officer for the divi
The following facts are undisputed. On October 8, 1990, the plaintiff contracted with the rap music group 2 Live Crew to perform at the Palace on October 12, 1990. In the late afternoon of October 10, the plaintiff contacted the state police barracks in Stafford Springs seeking to obtain a number of metal detectors for use at the performance. It was only then that the state police learned of the imminent 2 Live Crew appearance at the Palace.
On the morning of October 11, with only a short time remaining before the 2 Live Crew concert, the state police acted to ensure that the concert would be safe for all concerned. The police initially met with the fire marshall to discuss emergency lights, exits and occupancy limits for the Palace. They then contacted the highway department to arrange for barricades to keep concertgoers safe from traffic on adjacent streets and called area hospitals to advise them of the event. The state police also toured the Palace to ensure compliance with the fire code.
In the course of their preparations, the state police received information from police departments in other states that had previously hosted 2 Live Crew concerts. This information included three newspaper articles sent by the Dallas, Texas police department relating to a “furniture throwing melee at an aborted 2 Live Crew concert”
The state police also received information as to the possibility that a street gang would attend the concert and cause problems. In addition, there were no advance ticket sales for the show, and neither the police nor the plaintiff knew how many people would seek to attend the concert. This uncertainty caused concern regarding traffic problems and the potential negative reactions of those who might arrive after the 310 available tickets for the show had been sold.
In light of the above information and the related public safety concerns, state police officials recommended to the then commissioner of public safety, Bernard Sullivan, that state police be assigned to the Palace for the concert. Sullivan agreed with the recommendation and
The concert ultimately was held as scheduled with assigned state police and auxiliary troopers present. As in Dallas, concertgoers became agitated when 2 Live Crew arrived approximately two hours later than scheduled and temporarily walked out after a monetary dispute with management. Starting at approximately 1:30 a.m. on October 13, however, the group finally performed without serious incident. Approximately one month later, the plaintiff received a bill for $1991.74 for the police services that had been provided at the concert.
The plaintiff refused to pay the bill and subsequently filed this action seeking: (1) a declaratory judgment that § 7-284 is unconstitutional under both the state
The parties filed motions for summary judgment. The trial court denied the defendants’ motion but granted the plaintiffs motion, concluding that “the application of § 7-284 to performances of music and other protected speech, including the concert in this case, treats ‘the First Amendment as a privilege to be bought rather than a right to be enjoyed’; Invisible Empire Knights of the Ku Klux Klan v. West Haven, [600 F. Sup. 1427, 1434 (D. Conn. 1985)]; and is therefore unconstitutional.” Morascini v. Commissioner of Public Safety, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV910392693 (February 17, 1995). The defendants appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (b) (2), which provides for a direct appeal to this court “in any matter where the superior court declares invalid a state statute or a provision of the state constitution.” We reverse the judgment of the trial court.
I
We first address whether the trial court correctly concluded that § 7-284 applies to concerts.
“The word ‘amusement’ means anything that amuses, as an entertainment or spectacle .... Radcliffe v. Query, 153 S.C. 76, 150 S.E. 352 [1929].” 4 Am. Jur. 2d 121 n.1, Amusements and Exhibitions § 1. “A statute providing for the regulation of places of amusement includes all classes of public exhibitions, such as are usually conducted upon a stage for the observation and amusement of the public. Hence, a place of public amusement where concerts are given upon a stage is within its terms. New York v. Eden Musee American Co., 102 N.Y. 593, 8 N.E. 40 [1886].” Id. “Theaters and concert halls are places of public amusement . . . .” Id., pp. 121-22, citing People ex rel. McShane v. Keller, 96 Misc. 92, 161 N.Y.S. 132 (1916). A “place of amusement” is “[a] place to which people resort for diversion or pleasure, some being exhibitive and others participative, the former being represented by theaters, stadiums, and so forth and the latter by skating rinks, bowling alleys and so forth.” Ballentine’s Law Dictionary (3d Ed. 1969). We conclude that a nightclub that stages performances for the entertainment of its patrons is a “place of public amusement” as that phrase is commonly understood.
Moreover, concerts, by their very nature, are “exhibition^]” as that phrase is commonly understood. To
II
Having determined that § 7-284 is applicable to concerts, we turn to the plaintiffs first amendment challenge to its constitutionality. Our analysis of the constitutionality of § 7-284 begins with the premise that “ ‘a validly enacted statute carries with it a strong presumption of constitutionality, [and that] those who challenge its constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt.’ ” Fleming v. Garnett, 231 Conn. 77, 88, 646 A.2d 1308 (1994). As in any first amendment case, we must initially decide whether the activity at issue is protected by the first amendment. In this case, the parties are in agreement, and we agree, that “[m]usic, as a form of expression and communication, is protected under the First Amendment.” Ward v. Rock Against
“Expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions.” Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S. Ct. 3065, 82 L. Ed. 2d 221 (1984). “Describing the ordinance as a time, place, and manner regulation is, of course, only the first step in our inquiry. This Court has long held that
A
Section 7-284 provides for the imposition of the cost of police services “necessary or required at any . . . place of public amusement . . . or . . . exhibition . . . .’’As applied to the specific facts of this case, § 7-284 required the state police to provide whatever amount of police protection was “necessary or required” to ensure the public safety and to charge the plaintiff, as the promoter of the concert, for the costs incurred in doing so. The threshold question before us is whether the assessment of costs pursuant to § 7-284 in this instance is “ 'justified without reference to the
Deciding whether a particular regulation may be justified without reference to the content of the regulated activity is sometimes a difficult task. As the United States Supreme Court has stated, “the ‘principal inquiry in determining content-neutrality ... is whether the government has adopted a regulation of speech because of [agreement or] disagreement with the message it conveys.’ Ward v. Rock Against Racism, [supra, 491 U.S. 791]. See R.A.V. [v. St. Paul, 505 U.S. 377, 386, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992)] (‘The government may not regulate [speech] based on hostility — or favoritism — towards the underlying message expressed’). The purpose, or justification, of a regulation will often be evident on its face. See Frisby v. Schultz, 487 U.S. 474, 481 [108 S. Ct. 2495, 101 L. Ed. 2d 420] (1988). But while a content-based purpose may be sufficient in certain circumstances to conclude that a regulation is content-based, such purpose is not necessary in all cases. Cf. Simon & Schuster, [Inc. v. New York State Crime Victims Board, 502 U.S. 105, 117, 112 S. Ct. 501, 116 L. Ed. 2d 476 (1991)] (‘ “illicit legislative intent is not the sine qua non of a violation of the First Amend
“As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based. See, e.g., Burson v. Freeman, 504 U.S. 191, 197 [112 S. Ct. 1846, 119 L. Ed. 2d 5] (1992) (‘[wjhether individuals may exercise their free-speech rights near polling places depends entirely on whether their speech is related to a political campaign’); Boos v. Barry, 485 U.S. 312, 318-19 [108 S. Ct. 1157, 99 L. Ed. 2d 333] (1988) (plurality opinion) (whether municipal ordinance permits individuals to ‘picket in front of a foreign embassy depends entirely upon whether their picket signs are critical of the foreign government or not’). By contrast, laws that confer benefits or impose burdens on speech without reference to the ideas or views expressed are in most instances content neutral. See, e.g., Members of City Council of Los Angeles v. Taxpayers for Vincent, [supra, 466 U.S. 804] (ordinance prohibiting the posting of signs on public property ‘is neutral — indeed it is silent — concerning any speaker’s point of view’); Heffron v. International Society for Krishna Consciousness, Inc., [supra, 452 U.S. 649] (State Fair regulation requiring that sales and solicitations take place at designated locations ‘applies evenhandedly to all who wish to distribute and sell written materials or to solicit funds’).” Turner Broadcasting System v. Federal Communications Commission, Inc., 512 U.S. 622, 643, 114 S. Ct. 2445, 129 L. Ed. 2d 497, reh. denied, 512 U.S. 1278, 115 S. Ct. 30, 129 L. Ed. 2d 927 (1994).
The United States Supreme Court has held that a regulation aimed at the “secondary effects” of speech rather than its content will be classified as content-neutral. Id., 47-48. However, “[listeners’ reactions to speech are not the type of ‘secondary effects’ ” that will classify a regulation as content-neutral.
In Forsyth County, the ordinance at issue required groups wishing to use public property and roads for private purposes to obtain a permit before doing so. Id., 126. The ordinance further provided that every permit applicant “shall pay in advance for such permit, for the use of the County, a sum not more than $1,000.00 for each day such parade, procession, or open air public meeting shall take place.” (Internal quotation marks omitted.) Id. In addition, the ordinance provided that the county administrator shall “adjust the amount to be paid in order to meet the expense incident to the administration of the Ordinance and to the maintenance of public order in the matter licensed.” (Internal quotation marks omitted.) Id., 127. In January, 1989, the Nationalist Movement, a local affiliate of the Ku Klux Klan, sought a permit to hold a demonstration in opposition to the national holiday commemorating the birthday of Martin Luther King, Jr. Before it would issue the permit, the county required a $100 prepaid fee based on the county administrator’s time in issuing the permit. Id. The Nationalist Movement brought a facial challenge to the Forsyth County ordinance.
The court concluded that the fee authorized by the Forsyth County ordinance, as construed by the county, was “based on the content of the speech.” Id., 134. The court held that “[t]he fee assessed will depend on the administrator’s measure of the amount of hostility likely to be created by the speech based on its content. . . . The costs to which [the] petitioner refers are those associated with the public’s reaction to the speech. Listeners’ reaction to speech is not a content-neutral basis for regulation.” Id.
Although the court in Boos and Forsyth County rejected the claim that audience “reaction to speech”
In the present case, there is no indication in the record that the assignment of police officers to the 2 Live Crew concert at the Palace was determined by the
B
Having determined that the statute was applied in a content-neutral manner, we must next determine whether the application of the statute was “designed to serve a substantial governmental interest.” Renton v. Playtime Theatres, Inc., supra, 475 U.S. 47. We conclude that it was. As interpreted by the United States Supreme Court, this facet of the test to determine the constitutionality of a content-neutral regulation or statute is not particularly onerous. The governmental interest in protecting citizens from unwelcome noise; City Council of Los Angeles v. Taxpayers for Vincent, supra, 466 U.S. 806; in maintaining parks in an attractive and intact condition; Clark v. Community for Creative Non-Violence, supra, 468 U.S. 296; and in attempting to preserve the quality of urban life; Renton v. Playtime Theatres, Inc., supra, 50; have all been classified as sufficiently significant to warrant a content-neutral regulation of speech.
The state’s interest in properly policing the 2 Live Crew concert in this instance was twofold. Pursuant to
We also find no constitutional defect in the method employed by the legislature to further the government’s interests. When the regulation is content-neutral, the means chosen by the government to further its substantial interests “need not be the least restrictive or least intrusive means of doing so. Rather, the requirement of narrow tailoring is satisfied ‘so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.’ United States v. Albertini, [472 U.S. 675, 689, 105 S. Ct. 2897, 86 L. Ed. 2d 536 (1985)]; see also [Clark v.] Community for Creative Non-Violence, supra, [468 U.S.] 297.” Ward v. Rock Against Racism, supra, 491 U.S. 798-99. We conclude that the achievement of the government’s substantial interests in both public safety
C
Once we have determined a regulation to be content-neutral and designed to serve a substantial governmental interest, we must consider whether the regulation “unreasonably limit [s] alternative avenues of communication.” Renton v. Playtime Theatres, Inc., supra, 475 U.S. 47. Regarding this final prong of the test, the present case is analogous to Ward v. Rock Against Racism, supra, 491 U.S. 781. There, the New York City ordinance in question did not ban expression, just as § 7-284 does not ban expression. It required only that groups seeking to perform in a Central Park bandshell utilize a designated sound technician and sound equipment provided by New York City. In upholding the ordinance, the
The plaintiff claims that the costs imposed on him by virtue of § 7-284 will foreclose him and other promoters from an avenue of expression. The plaintiffs argument is essentially that no fee may be imposed upon any person or group seeking to exercise first amendment rights because some may be unable to pay the fee and consequently be unable to exercise those rights. Such a claim, while appealing in the abstract, is contrary to precedent. It is well established that speakers may be billed for those costs incurred by the government as a result of the exercise of first amendment rights. In Cox v. New Hampshire, 312 U.S. 569, 577, 61 S. Ct. 762, 85 L. Ed. 1049 (1941), for instance, the court assessed the validity of a parade permit fee designed “ ‘to meet the expense incident to the administration of the [a]ct and to the maintenance of public order in the matter licensed.’ ” In upholding the fee, the court stated that “[t]here is nothing contrary to the Constitution in the charge of a fee limited to the purpose stated.” Id. Other cases have led to a similar result. See, e.g., National Awareness Foundation v. Abrams, 50 F.3d 1159, 1165 (2d Cir. 1995) (fees imposed in order “to meet the
We conclude that § 7-284, as applied to the plaintiff, is content-neutral, is tailored to serve a substantial governmental interest and does not unreasonably limit alternative avenues of communication. For these reasons, we hold that § 7-284 was applied to the plaintiff in a manner consistent with the first amendment.
in
Our conclusion that § 7-284 was applied to the plaintiff in a content-neutral manner does not necessarily guarantee that § 7-284 will not be applied to expressive activities in a content-based manner in the future. It is well settled, however, that we may “add interpretive gloss to a challenged statute in order to render it constitutional. ‘In construing a statute, the court must search
The plaintiff also claims that § 7-284 impermissibly vests police officials with standardless discretion regarding if and when to charge for police services. We disagree. Section 7-284 provides that the police “shall” provide necessary police services and that the promoter “shall” pay for such services. There is no leeway in the statute for the police official to bill those groups with which he or she disagrees and not to bill groups that he or she supports. Contrary to the discretionary fee that was the subject of Forsyth County,
Finally, there is no merit to the plaintiffs claim that § 7-284 vests public officials with limitless and standardless discretion in deciding how much police protection is necessary at an event. The statute specifically limits the amount of protection to that “necessary or required.” There is no evidence in the record that any
We conclude that § 7-284, as applied to the plaintiff, is consistent with the first amendment. We also conclude that there is nothing in § 7-284, as interpreted, that is inconsistent with first amendment protections.
The judgment is reversed and the case is remanded to the trial court with direction to deny the plaintiffs motion for summary judgment and to grant the defendants’ motion for summary judgment.
In this opinion PETERS, C. J., BORDEN and PALMER, Js., concurred.
General Statutes § 7-284 provides: “Police protection at places of amusement. When police protection is necessary or required at any boxing bout or wrestling match, place of public amusement, sport contest or hockey, baseball or basketball game, or any other exhibition or contest, which is being held or is to be held in any municipality, the amount of such protection necessary shall be determined and shall be furnished by (1) the chief or superintendent of the police department in any municipality having an organized or paid police department or (2) the commanding officer of the state police troop having jurisdiction over the municipality in any municipality having a resident state trooper. Any such protection shall be paid for by the person or persons operating, conducting or promoting such game, exhibition or contest.”
That concert was aborted when 2 Live Crew arrived nearly three hours late for a scheduled concert and then refused to perform because of a monetary dispute with club management.
Additionally, numerous press inquiries were made prior to the Stafford Springs performance and, according to the state police, “[t]here was . . . every indication that the press was going to be there in force.”
Because the plaintiff has not presented this court with a separate analysis of his right to freedom of speech under the state constitution, we confine our analysis to the application of the first amendment to the United States constitution. See, e.g., State v. Nixon, 231 Conn. 545, 550 n.4, 651 A.2d 1264 (1995).
The plaintiff claims on appeal that the trial court could have ruled in his favor by determining, as a matter of statutory construction, that § 7-284 does not apply to concerts and other expressive activities.
Section 7-284 provides that this official should be either “(1) the chief or superintendent of the police department in any municipality having an organized or paid police department or (2) the commanding officer of the state police troop having jurisdiction over the municipality in any municipality having a resident state trooper. . . .”
The trial court, indicated that because Stafford Springs had neither its own police department nor a resident state trooper at the time of the concert, it did not believe that the defendants fell within the terms of the statute. The trial court,, at the urging of both parties, however, declined to decide
This case is distinguishable from West Haven v. Dean, 6 Conn. Cir. Ct. 629, 292 A.2d 263 (1971), on which the plaintiff relies. In Dean, the Appellate Division of the Circuit Court concluded that a restaurant that provided nightly music for its patrons did not fall within the terms of § 7-284. It is not inconsistent to say that a nightclub falls within the definition of “place of public amusement” when hosting a concert while a restaurant that provides music for dining and dancing does not. Moreover, because the court in Dean relied on the absence of a trial court finding that “police protection [was] necessary or required” in reaching its conclusion, its determination of (he definition of what constitutes a “place of public amusement” is dictum. Id., 632.
At the outset, we note that this case is distinguishable from those cases cited by the parties that analyze statutes requiring potential speakers to pay a fee in order to be permitted to utilize public property to air their views and concerns publicly. See, e.g., Forsyth County v. Nationalist Movement, 505 U.S. 123, 112 S. Ct. 2395, 120 L. Ed. 2d 101 (1992) (parade permit fee); Stonewall Union v. Columbus, 931 F.2d 1130 (6th Cir. 1991) (requirement that parade sponsors prepay for those police officers determined to be necessary to control traffic along parade route); Invisible Empire Knights of the Ku Klwx Klan v. West Haven, supra, 600 F. Sup. 1427 (requirement that applicants for public demonstration permits post bond for city’s costs of police protection at public demonstrations of more than twenty-five persons). In those cases, the speakers sought to use quintessential public forums that have over time served as outlets for the exchange of ideas. In places “historically associated with the free exercise of expressive activities, such as streets, sidewalks, and parks . . . the government’s ability to permissibly restrict expressive conduct is very limited.” United States v. Grace, 461 U.S. 171, 177, 103 S. Ct. 1702, 75 L. Ed. 2d 736 (1983).
Moreover, cases concerning parade permit fees are distinguishable because such fees are a necessary prerequisite to the use of the public property for speech purposes, thus making the fee a prior restraint on speech. When speech is predicated upon the payment of a fee, there is a “heavy presumption” against the constitutional validity of the fee. Forsyth County v. Nationalist Movement, supra, 505 U.S. 130. The disfavor with which prior restraints are treated is a product of the first amendment’s concern with the “the danger of censorship.” Id., 131. No such danger of censorship existed in the present case because the fee was not payable until after the concert had taken place. Prior restraints are present only if a regulation gives “public officials the power to deny the use of a forum in advance of actual expression.” Ward v. Rock Against Racism, supra, 491 U.S. 795 n.5; Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 553, 95 S. Ct. 1239, 43 L. Ed. 2d 448 (1975); TJ’s South, Inc. v. Lowell, 895 F. Sup. 1124 (N.D. Ind. 1995). No such power was exercised in the present case.
In Renton v. Playtime Theatres, Inc., supra, 475 U.S. 48, the “secondary effect” targeted by the statute was the preservation of the neighborhood from the blight anticipated to be caused by an influx of “adult” theatres.
Bernard Sullivan, the commissioner of public safety at the time of the 2 Live Crew concert, described the factors that led to his decision to police the concert: “Some of the rationale was the fact that this group — what was it — 2 Live Crew, I think was the name of it, was coming to Stafford Springs, that they were very well known at the time. I had seen some articles on them, that they had determined that in prior locations where they had played concerts, there had been public safety problems, fights breaking out in a crowd, things of that nature. There had been a lot of publicity generated about that.
“Based on that, [Major John Jacewicz] expressed to me his concerns about the fact that, whether or not we could assure public safety in and around that event that evening. He felt it necessary to assign police officers there, which I concurred with.”
Sullivan was then asked whether he shared the concerns expressed by Lieutenant Peter Plante in his deposition testimony about “the audience reaction to 2 Live Crew.” Sullivan, who had not received input from Plante about the need for police at the 2 Live Crew concert, responded:
“A. I don’t remember that exact wording being used by Major Jacewicz. I know he did mention, as I just stated, that in prior concerts there had been public safety issues, where fights had broken out in the crowd. Whether it was expressed as a reaction to the group or just the crowd itself, I couldn’t remember.
“Q. Did you have knowledge of the reputation of the group at the time you made the decision?
“A. Somewhat, yes. As best I can recall, they were a very popular group, rap music, drew a very young, exciting crowd, and there had been some problems in prior areas. I had seen myself in the media, on TV, or read in the paper where with prior concerts by this group, there was fighting breaking out in the crowd. Police had to be brought in to break up disturbances, things of that nature.
“Q. Do you remember anything else Mr. Jacewicz told you?
“A. No, it was pretty much the fact that they had contacted some other towns that had concerts where this group performed, or there had been prior public safety concerns, fights breaking out.
*799 “Again, that is one of the biggest things, I guess, that occurred. I can’t recall whether or not they indicated there was drinking involved or anything like that, because with a lot of different types of concerts, you get kids drinking or you get them using drugs, and what have you. But there had been prior public safety concerns, and because of that, he felt it necessary to provide police service, and I concurred with that.”
The commissioner of public safety was entitled to base his decisions on the experiences of other cities that had hosted 2 Live Crew concerts. “The First Amendment does not require a city ... to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses.” Renton v. Playtime Theatres, Inc., supra, 475 U.S. 51-52.
While agreeing that Sullivan considered many content-neutral factors in determining whether to invoke § 7-284, both dissents emphasize that in response to the plaintiffs request for admissions, the defendants admitted that when determining the necessity for police presence at the concert, Sullivan had considered the nature and content of 2 Live Crew’s lyrics, “ ‘insofar as the nature or content [of the lyrics] might provoke or incite the crowd and thereby cause public safety concerns.’ ” We disagree both with Justice Katz’ conclusion that this admission requires that we affirm the trial court’s grant of summary judgment for the plaintiff and with Justice Norcott’s conclusion that this admission warrants a remand to the trial court for a factual determination. The defendants admitted only that Sullivan had considered whether the content of the music “might provoke or incite the crowd.” (Emphasis added.) There is no evidence in this record, and the plaintiff does not argue, that Sullivan found that the music would incite the crowd or that the determination of the number of police necessary to ensure
The city of Hartford indicates that in the absence of § 7-284, the city would have to pay out of taxpayer dollars not only what is currently being billed to private promoters, but also the additional costs that would be incurred because the city would have to pay the police officers on a time and one-half basis rather than the “private job (straight) time rate.”
This is not to say that if potential listener reaction to the expressive conduct necessitates additional police services, the police may not bill for any services. The bill, however, must be limited to those services unrelated to listener reaction to the speech.
Although the language of the ordinance in Forsyth County indicated that the fee might have been mandatory, the court relied on the county’s own interpretation of the statute, which allowed the fee to be reduced or waived based on “the whim of the administrator.” Forsyth County v. Nationalist Movement, supra, 505 U.S. 133. We interpret § 7-284 to allow no such discretion.
Having concluded that the charge for police services in this case was imposed on the plaintiff in a content-neutral manner and having interpreted .§ 7-284 to require mandatory charges in the future, we need not address the plaintiff’s allegation that Sullivan, as chief of the Hartford police department prior to his term as commissioner of public safety, had applied § 7-284 in a content-based manner.
In this case, the plaintiff limited his challenge to the constitutionality of the application of § 7-284 to the 2 Live Crew concert and to future expressive activity. He did not claim that, as a matter of fact, the police services provided at the 2 Live Crew concert were unnecessary or that the amount of the fee charged therefor was unreasonable.
Dissenting Opinion
dissenting. I agree with parts I and III of the majority opinion, and generally with its exposition of the relevant first amendment law principles in part II. I do not agree, however, that, in light of those principles, summary judgment should be granted in
“The standards governing our review of a trial court’s decision to grant a motion for summary judgment are well established. ‘Practice Book § 384 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ” Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). “ ‘Issue of fact’ encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them.” United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969). “ ‘A material fact’ is simply a fact which will make a difference in the result of the case . . . .” Yanow v. Teal Industries, Inc., 178 Conn. 262, 268, 422 A.2d 311 (1979). Summary judgment “is appropriate only if a fair and reasonable person could conclude only one way. . . . The movant must show that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue
On appeal, the defendants claim that § 7-284 as applied to the plaintiff is a valid time, place and manner regulation. It is well established that expression protected by the first amendment, which concerts are; Ward v. Rock Against Racism, 491 U.S. 781, 790, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989); may be subjected to reasonable time, place and manner restrictions. Id., 791; Renton v. Playtime Theatres, Inc., supra, 475 U.S. 47; Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S. Ct. 3065, 82 L. Ed. 2d 221 (1984). The first step in determining whether such a restriction is valid is to determine whether it is “content-neutral” or “content-based.” A regulation is content-neutral if it is “ 'justified without reference to the content of the regulated speech.’ ” (Emphasis in original.) Renton v. Playtime Theatres, Inc., supra, 48, quoting Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S. Ct. 1817, 48 L.
The defendants argue that the undisputed facts demonstrate that in applying § 7-284 to the plaintiff, then commissioner of public safety, Bernard Sullivan, relied on only content-neutral justifications, and that because the statute is designed to serve a substantial governmental interest and does not unreasonably limit alternative means of communication, it therefore constitutes a valid time, place and manner restriction as applied to the plaintiff. The plaintiff argues to the contrary that the undisputed facts demonstrate that Sullivan’s application of § 7-284 was based on the content of the music to be performed and that it cannot survive the strict scrutiny applicable to a content-based regulation. Although I agree with the defendants and with the majority that certain undisputed facts before us require the conclusion that Sullivan, in assigning police services to the concert, relied on several content-neutral factors; see part IIA of the majority opinion; I am not persuaded, in light of other evidence in the record, that there is
The evidence that raises this question is the admission by the defendants that “the decision to assign police at the Palace Cafe’s 2 Live Crew concert took into account the nature of the music and the content of the lyrics, insofar as the nature and content might provoke or incite the crowd and thereby cause public safety concerns.” The trial court made no express finding regarding the import of this admission.
Whether the application of § 7-284 to the plaintiff was justified without reference to the content of the music is clearly a material issue, for I am not convinced, and the majority does not suggest that, if § 7-284 was applied in a content-based manner, it would survive strict scrutiny.
The trial court concluded that § 7-284, “as applied in the present case, is a content-based regulation.” Its conclusion appears to have been based on Sullivan’s having considered intelligence reports discussing the behavior of crowds at 2 Live Crew concerts in other cities. The majority points out, however, and I agree, that not every regulation aimed at audience behavior is content-based. Such a consideration is content-based only if the targeted audience behavior, the cost of controlling which is to be passed on to the speaker or promoter, is related to the message conveyed in the protected speech. See part IIA of the majority opinion. I agree with the majority that there is no indication that Sullivan’s concern with audience misbehavior drawn from the intelligence reports was related to the audience’s reaction to messages conveyed in the music.
I do not agree with the dissenting opinion of Justice Katz that the fact that Sullivan consulted the content of the lyrics is sufficient to render the statute as applied content-based, regardless of whether he formed and relied on any predictions as to the effect of the content on the crowd in assigning police services to the concert.
Dissenting Opinion
dissenting. I agree with part I of the majority opinion that General Statutes § 7-284 applies to the 2 Live Crew concert at issue in this case. I also agree that the concert is protected under the first amendment to the United States constitution. I disagree, however, with part II A of the majority opinion that, in this case, the defendants’ determination of whether to assign police protection and how much to assign to the concert held at the plaintiffs club was “ ‘justified without reference to the content’ of 2 Live Crew’s [music].” (Emphasis added.) Therefore, I respectfully dissent.
The United States Supreme Court has long held that “regulations enacted for the purpose of restraining speech on the basis of its content presumptively violate the First Amendment.” Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46-47, 106 S. Ct. 925, 89 L. Ed. 2d 29, reh. denied, 475 U.S. 1132, 106 S. Ct. 1663, 90 L. Ed. 2d 205 (1986). Content-based regulations can be upheld only if they are “necessary to serve a compelling state interest and . . . [are] narrowly drawn to achieve that end.” (Internal quotation marks omitted.) Boos v. Barry, 485 U.S. 312, 321, 108 S. Ct. 1157, 99 L. Ed. 2d 333 (1988). “On the other hand, so-called ‘content-neutral’ time, place, and manner regulations are acceptable so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication.” Renton v. Playtime Theatres, Inc., supra, 47. “Content-neutral” speech restrictions are those that “ ‘am justified without reference to the content of the regulated speech.’ ” (Emphasis in original.) Id., 48, quoting Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976).
In this case, one of the factors that the defendants considered in determining whether to invoke § 7-284 was the content of 2 Live Crew’s music.
This case is not unlike Forsyth County v. Nationalist Movement, supra, 505 U.S. 123, in which the United States Supreme Court concluded that an ordinance that allowed the county administrator to charge a fee for the issuance of a permit to hold a parade or assembly was impermissibly content-based. The administrator was empowered to adjust the amount of the fee in order to meet the expenses arising from the administration of the ordinance and the maintenance of the public order during the event for which the permit was sought. Id., 126-27. The constitutionality of this ordinance was challenged by the Nationalist Movement when it was charged $100 for a permit to conduct a demonstration
The court first concluded that the ordinance left unbridled discretion to the administrator.
The court in Forsyth County further concluded that the “ordinance contains more than the possibility of censorship through uncontrolled discretion. As construed by the county, the ordinance often requires that the fee be based on the content of the speech. ... In order to assess accurately the cost of security for parade participants, the administrator must necessarily examine the content of the message that is conveyed . . . estimate the response of others to that content, and judge the number of police necessary to meet that response. The fee assessed will depend on the administrator’s measure of the amount of hostility likely to be created by the speech based on its content. . . . It is clear . . . that, in this case, it cannot be said that the fee’s justification ha[s] nothing to do with content.” (Citations omitted; internal quotation marks omitted.) Id., 133-34. Rather, the cost of policing the demonstration is “associated with the public’s reaction to the speech.” Id., 134. This is directly applicable to the case presently before us because, in determining whether police protection was necessary or required for this concert and the quantity that would be necessary or required, the defendants stated that they considered
The majority incorrectly determines that the application of § 7-284 in this case was content-neutral and, consequently, incorrectly concludes that its application constituted a “valid time, place, or manner restriction.” It disposes of the critical admission in which the defendants stated that they considered the content of 2 Live Crew’s lyrics in determining whether to apply § 7-284 by reasoning that Sullivan had considered only “whether the content of the music ‘might provoke or incite the crowd’ ”; (emphasis in original); and not that the music would in fact provoke or incite the crowd. The majority states that “[t]here is no evidence in this record . . . that Sullivan found that the music would incite the crowd or that the determination of the number of police necessary to ensure the public safety was actually affected by any message conveyed by the music.” (Emphasis in original.) I discern no difference, however, between considering whether the content of music might or would incite lawlessness. It is sufficient that the defendants considered the content of the music in making their decision. It is irrelevant that there is no evidence that lawlessness would actually ensue. See Texas v. Johnson, 491 U.S. 397, 409, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989) (impermissible to consider even whether speech has potential to be breach of peace). In fact, if the defendants had proven that 2 Live Crew’s music had been “directed to inciting or producing lawless action and [was] likely to incite or produce such
By considering the content of 2 Live Crew’s music in determining whether to apply § 7-284, the defendants can, consequently, “grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views.” (Internal quotation marks omitted.) Renton v. Playtime Theatres, Inc., supra, 475 U.S. 48-49. This is not permitted by the first amendment. Accordingly, I respectfully dissent.
Although I agree with the majority that the defendants considered many content-neutral factors in determining whether to invoke § 7-284, the record reveals that they also considered content-based factors, which the majority agrees is impermissible.
For example, an investigative report prepared by the chief of police of the Westerly, Rhode Island police department noted that various cities had decided to require police protection at 2 live Crew concerts because the group had achieved great notoriety and increased interest by fans and the media following a 1990 decision by a United States District Court that the songs from the group’s “As Nasty As They Wanna Be” album were obscene, and the subsequent arrest of two of the group’s members for nonetheless performing songs from this album.
The United States Supreme Court also disapproved of the ordinance because by “requiring a permit and a fee before authorizing public speaking, parades, or assemblies ... [it was] a prior restraint on speech.” Forsyth County v. Nationalist Movement, supra, 505 U.S. 130.
The administrator testified that he had charged various fees for permits for different events, without providing any basis for the differences. For example, the Nationalist Movement had been charged $100 on a prior occasion, while bicycle race organizers had been charged $25 to hold a race on county roads and the Girl Scouts had been charged $5 for an activity on county property. Further, in certain cases, the county required neither a permit nor a fee for activities on county facilities or land. Forsyth County v. Nationalist Movement, supra, 505 U.S. 132.
These examples of Sullivan’s arbitrary application of § 7-284 stem from his tenure as the police chief of the city of Hartford. Although he testified during his deposition that the first time that he applied § 7-284 in his capacity as commissioner of public safety was in the case presently before us, he further testified, however, that he applied the statute in the same manner as commissioner as he had previously applied the statute while he was chief of police.
Because I conclude that the application of § 7-284 to the 2 live Crew concert at issue in this case was content-based, I disagree that the test used in part IIB and C of the majority opinion properly may be applied. Instead, the proper test for a content-based statute requires that we ask whether it is “necessary to serve a compelling state interest and ... is narrowly drawn to achieve that end.” (Internal quotation marks omitted.) Boos v. Barry, supra, 485 U.S. 321. The trial court determined that this test was not satisfied because, although a compelling state interest was involved — public safety — the statute was not narrowly drawn because it left too much discretion in its application. The defendants, believing that the statute was applied in a content-neutral manner in this case, do not claim that this stricter test was satisfied.
Furthermore, I agree with part III of the majority opinion that § 7-284 can be applied in a content-neutral manner in the future as long as its application is justified without reference to either the content of the speech or the listeners’ reaction to the speech.