Ward v. Rock Against Racism

PETITIONER:Ward
RESPONDENT:Rock Against Racism
LOCATION:Washington, D.C.

DOCKET NO.: 88-226
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 491 US 781 (1989)
ARGUED: Feb 27, 1989
DECIDED: Jun 22, 1989

ADVOCATES:
Leonard J. Koerner – Argued the cause for the petitioners
William M. Kunstler – Argued the cause for the respondent

Facts of the case

New York City, responding to complaints of high-decibel concerts adjoining residential neighborhoods, mandated the use of city-provided sound systems and technicians for concerts in Central Park. Members of rock group claimed that the inability to use their own sound equipment and technicians in a concert in a public forum interfered with their First Amendment rights of expression.

Question

Does the New York ordinance substituting a city-employed technician and mixing board for a performer’s mixer and equipment violate the First Amendment?

William H. Rehnquist:

We’ll hear argument next in No. 88-226, Benjamin R. Ward v. Rock Against Racism.

Mr. Koerner?

Leonard J. Koerner:

Mr. Chief Justice, and may it please the Court:

The opinion of the Second Circuit of the Court of Appeals is flawed in two respects.

It ignored the history leading up to the sound amplification guideline, along with the district court findings, most of which were based on uncontradicted evidence; and it applied the least restrictive alternative to suggest a hypothetical solution which had not been urged by either side up to the point of the circuit court of appeals’ decision.

The bandshell, which is the subject of the sound amplification guideline, is located in the heart of Central Park.

It’s surrounded by two major roads, Central park West and Fifth Avenue.

In both areas, it’s heavily residential.

In addition, to the southwest of the bandshell within 150 yards, is the Sheep Meadow which was designated by the mayor as a quiet… a place for repose.

Individuals who go there cannot use radios.

They can only sit, read, et cetera.

Harry A. Blackmun:

How long ago was that?

Leonard J. Koerner:

Nineteen eighty-five, Your Honor.

Harry A. Blackmun:

Just three years ago.

Leonard J. Koerner:

Yes, that is correct.

Between 1979 and 1986–

William J. Brennan, Jr.:

xxx preceded the quiet area?

Leonard J. Koerner:

–Yes, Your Honor.

Between 1979 and 1986, Rock Against Racism conducted concerts in the bandshell.

During this period, there was a great deal of arguments between the city and the… and the RAR concerning the loudness.

The following occurred during the… during this period.

In 1983 the police attempted to lower the sound at the mixing board, and as a consequence, the sponsor got up and told the audience that the police were trying to lower the sound and it caused a confrontation.

There was some tension, and eventually the sound was lowered, and then it went back up.

This was the pattern each year.

There would be the interaction between the park officials and the promoter resulting in this tension each time.

John Paul Stevens:

Mr…. Mr. Koerner, may I ask about the tension?

Did the… the excess sound, having it too loud, violate any city ordinance or any city rule?

Leonard J. Koerner:

There was a general guideline for all parks that prohibited excessive sound.

And, indeed, summonses could be issued for that guideline and summonses were issued in this case during some of the years, but the summonses were not paid.

John Paul Stevens:

Were… were the… and the violation of that guideline is subject to penalties.

Leonard J. Koerner:

That’s correct.

John Paul Stevens:

And… and why didn’t the city collect those penalties–

Leonard J. Koerner:

Basically they–

John Paul Stevens:

–If they had the right to?

Leonard J. Koerner:

–The record does not show why.

John Paul Stevens:

But why wouldn’t that be an adequate means of preventing excessive sound in following years?

Leonard J. Koerner:

Because we… as I understand it, we… they just went unpaid.

The city tried to enforce them, but this is a not-for-profit group that shows up once a year.

As a practical matter, it just wasn’t enforced.

John Paul Stevens:

Well, maybe you could deny them a permit.

I suppose one of the remedies would be denial of a permit for violation of the law preceding years.

Leonard J. Koerner:

Yes, that could be an alternative.

But, frankly, we would just be in litigation each year in determining whether or not the nature of the violation was such–

John Paul Stevens:

Well, whenever you enforce a law, you get in litigation.

I mean, that’s one of the… one of the things you have to do to enforce the law is you have to litigate.

Leonard J. Koerner:

–Yes, We don’t deny that there could have been other alternatives.

But this one was tried without success.

Anthony M. Kennedy:

Are you saying that the troubles with RAR was the reason for the adoption of the ordinance?

Leonard J. Koerner:

No.

There were two other… there were two other… It was one of the reasons.

The bleeding out of sound into the Sheep Meadow areas and in the residence was one of the grounds.

The two other reasons were that they wanted to unify the system of permits.

The bandshell is the most frequently used place in Central Park.

And as a result, it was a very diffuse process where the applications had to be made to many different entitles, and they wanted to centralize it in one person.

The second thing is that many of the groups who come to the bandshell are unfamiliar with outdoor concerts.

As a consequence they come with machines that are under-powered and many people don’t even nave the machines, and want to know what the source would be to rent such machines.

So, the second purpose was to assure every group that participated in the bandshell that they would have the high-quality mechanics that would allow then to sponsor their broadcast.

Anthony M. Kennedy:

Mr. Koerner, the–

–Is it your position that the quality of the sound is the same whether or not the technician is the city technician or the Rock technician?

Leonard J. Koerner:

Precisely, Your Honor, indeed, if I can answer that in some depth.

Leonard J. Koerner:

That goes to the heart of the issue.

The testimony at trial was precisely that.

The city-hired sound consultant, Gary Floyd, has asked that both on direct and cross-examination.

What he pointed out is that when you reflect the mix, you do it based on your technical knowledge and the knowledge that you obtain by talking to the performers, that this happens all the time.

And that by doing sound checks in advance, sending out technical information to each of the performers and, in addition, by talking to them on the phone in advance of the concert and allowing the performer, if he desires, to set someone down next to you to give you the technical advice, you can reflect exactly what the mix is supposed to be.

Indeed, that’s precisely what the district court found.

And when Alan Thompson, who was the technician for RA, testified, he pointed out precisely that’s the method he used.

Two things I would like to elaborate on in response to your question.

First, one year they didn’t even use Alan Thompson.

They rented out the equipment.

So, they used precisely the same type of program that we used.

The person came on, and he reflected the mix through the same process I just described.

In addition, Alan Thompson rented his equipment, and so… just as we rent our equipment.

So, it was very similar.

And finally–

Anthony M. Kennedy:

So, the sound technician is not as important as, say, a conductor of a symphony?

Leonard J. Koerner:

–That is correct.

The sound technician is merely a mechanic, and he can reflect, as the testimony shows, within five minutes precisely what the performer wants.

When Alan Thompson, RAR’s technician, was asked how he achieves the mix, he said exactly what Gary Floyd said.

He speaks to the performer, he does a sound check at the beginning of the concert, and finally he allows the performers to have a technician at his side in order to reflect the concert.

So, that’s precisely right.

Anthony M. Kennedy:

I might have had some trouble with that proposition if it just depended on my own knowledge, but the record seems to bear you out.

Leonard J. Koerner:

Not only does the testimony confirm that, but the district court on two occasions reviewed that testimony.

The first time it specifically noted that the technician defers to the sponsor as to the mix.

And then RAR made a motion to clarify the order to determine who was to control the mixing board.

In response to that motion, the district court judge issued a second opinion in which he said as far as the regulation is concerned, the city is required… he read into the regulation a requirement that they defer to the sponsor on the mix.

And then he pointedly noted that there had been no evidence to indicate that the city could not reflect the mix properly.

And in addition, there had been evidence to indicate that the city could reflect.

And that was the overwhelming testimony.

Byron R. White:

Well, if… if… if the city is going to reflect the mix a performer wants, why does the city want control of the mix?

Leonard J. Koerner:

Because it’s the only way to also control the sound to make sure that the bleeding doesn’t occur to the–

Byron R. White:

So, you say there’s just no practical way of just controlling the sound?

Leonard J. Koerner:

–Yes.

Byron R. White:

You have to do them both together.

Leonard J. Koerner:

Yes, because when the sound consultant was given the job of considering alternatives, they considered, one, just having the city technician, but having the sponsor’s equipment.

But then the mix would have suffered because a technician is only as good as familiarity with his equipment.

If he is not familiar with the equipment, he can’t do the job.

So, that was rejected.

The other thing they thought about was negotiating a decibel level.

But they had tried that in 1984, indeed at the suggestion of RAR, and RAR, on the eve of a concert, did not agree to it and said that no decibel level would be appropriate.

Indeed, consistent with that, in the testimony by Alan Thompson, RAR’s chief witness, when he was asked at what level it would be appropriate for the city to interfere with the concert, he said only when the audience’s ears bleed, which gives you an idea of their reaction to any attempt on the part of the city to protect the unwilling listeners in the Sheep Meadow.

Also–

Antonin Scalia:

He didn’t really say only.

I meant I… I think he was–

Leonard J. Koerner:

–Or painfully loud, he said.

Byron R. White:

–That’s right.

Well, how does… excuse me.

How do… how does the city control the sound?

It controls the mix and the sound.

Leonard J. Koerner:

And the… the volume levels are right on the mixing board.

Byron R. White:

Right, right.

Well, why… let’s assume there wasn’t a city… the city hadn’t put this scheme in and that the performers were allowed to use their own equipment and… to control the mix.

Why couldn’t a city technician sit with the performer’s technician and control the sound?

Leonard J. Koerner:

That is a possibility, Your Honor, but the problem is it causes the same interaction between the sponsor’s technician and the city’s technician that creates the same confrontational atmosphere that the city had in 1983 when it tried to use the police to lower the sound.

Byron R. White:

Well, here’s the city with its own equipment sitting there with a technician control ling the mix and the sound.

They have next to them a technician from the performers who… who, in effect, control the mix.

Leonard J. Koerner:

Yes.

That is–

Byron R. White:

Why doesn’t that create the confrontation?

Leonard J. Koerner:

–That… that is a possibility, but by having the city technician alongside with the sponsor’s technician, you have the same type of atmosphere that we were trying to avoid, which is this interaction which never worked.

Leonard J. Koerner:

In addition, while each of these methods may be plausible, we believe that under that appropriate tests, which I will discuss in a little while… that not the test.

The least restrictive alternative has never been a test of this Court.

And the question is whether the city’s method has been effective.

And I would like to deal with that before we get, to the law.

Anthony M. Kennedy:

But just before we leave that point, there is no finding that it is not feasible from a technical standpoint for one person to control volume and the other mixing?

Leonard J. Koerner:

That’s correct.

Although I… what the record does show is that the technician, when he works both, he works them… it’s done immediately.

So, these… these knobs are constantly being put up and down.

But you are quite correct.

There’s nothing directly on point in that.

I do want to point out that in 1986, 50 to 60 concerts were held under this sound amplification guideline.

In terms of whether the city could protect the mix of the sponsor, every group was satisfied, some of whom used the New York Sound group that was designated as sponsor for outdoor concerts.

So, not only do we have a history and we have an expert that had been retained, but we have an in-fact use of this system, and every group reflected the mix… said that the mix had been reflected properly.

John Paul Stevens:

But may I… may I inquire?

Supposing you had a less sophisticated problem and maybe a little different area that you want to avoid excessive sound in and the drummer played much too loud and they couldn’t get him to quiet down, or the trumpet player played much too loud.

Could the city say, well, we can’t seem to get him to control it, so we’re going to insist on having our own drummer in this band?

Leonard J. Koerner:

No.

John Paul Stevens:

Why not?

What’s the difference?

Leonard J. Koerner:

Because in that particular case–

John Paul Stevens:

And he’s good.

He’s every bit as good as your mixer and all the rest.

He’s a talented artist.

Leonard J. Koerner:

–And the drummer is bleeding outside?

John Paul Stevens:

Well, he just plays too loud for the… for the surroundings, and they keep saying to him, hey, you’re too loud.

And he says, well, this is the way I play.

Leonard J. Koerner:

Then I… then, yes, we could control the excessive sound if–

John Paul Stevens:

By… by putting in your own drummer.

Leonard J. Koerner:

–No, by controlling the sound–

John Paul Stevens:

No, no.

John Paul Stevens:

You don’t have any fancy… you just have old-fashioned musical instruments and in a living room or a smaller area.

And you have a regulation in this neighborhood you can’t… you can’t have excessive sound more than X number of decibels.

And you say it’s too much trouble to enforce it by arresting people and putting them in jail.

So, you say, well, we’ll insist on having cur own drummer in this band or our own trumpet player.

Leonard J. Koerner:

–No, because I think there–

John Paul Stevens:

What’s the difference?

Leonard J. Koerner:

–you would be substituting your judgment for that as the esthetic, the drummer himself.

But we’re not doing that.

John Paul Stevens:

Well, no.

You say your drummer… he’ll play it exactly the way… he’ll play exactly the way your arranger thinks it ought to be played.

Leonard J. Koerner:

Well, but that comes close–

John Paul Stevens:

And he’s good.

Leonard J. Koerner:

–I agree, and that’s a tougher case and it comes closer to substituting your judgment for that as the… the musical–

John Paul Stevens:

No, I’m not substituting.

Just have a different performer.

Leonard J. Koerner:

–But a different performer takes away from the in effect, the quality of the performance.

I can see–

John Paul Stevens:

No, I’m assuming it doesn’t.

I’m assuming it doesn’t.

They just say we’d like to have our own drummer.

Leonard J. Koerner:

–I guess–

John Paul Stevens:

Like we’d like to have our own mixer.

Leonard J. Koerner:

–But I think the mixer is different in that–

John Paul Stevens:

Why?

Leonard J. Koerner:

–Because with respect to the drummer, you’re replacing the instrument itself.

John Paul Stevens:

Well, yes.

You’ve got to use city on drums, too–

Leonard J. Koerner:

And maybe in that–

John Paul Stevens:

–Like you say you got to use city-owned mixing equipment.

Leonard J. Koerner:

–Maybe in that case, it would be unreasonable because the city would then be imposing it and substituting its choice for that of the actual instrument.

John Paul Stevens:

Which is exactly what’s happening here.

Leonard J. Koerner:

I understand where that’s a more egregious situation, but I don’t think that’s what you have here.

Antonin Scalia:

You basically don’t… don’t believe that the drummer could be same, could be exactly the same.

Leonard J. Koerner:

That’s exactly right.

Antonin Scalia:

Whereas you do believe that the mixer could be the same.

Leonard J. Koerner:

Here we… we did exactly–

Antonin Scalia:

Just like replacing a ballet dancer, use our ballet dancer.

He’ll just be just as good.

You don’t believe he’ll be just as good, do you?

Leonard J. Koerner:

–That’s right.

Antonin Scalia:

But you can believe that a mixer might be just as good.

Leonard J. Koerner:

That’s right.

And if I may give an example, Justice Stevens.

If this individual was using an auditorium that had a built-in loudspeaker system, I suppose one could argue that depending on the nature of the loudspeaker system, it’s affecting the quality of his performance.

But at some point you have to draw the line.

And with the mix and the loudspeaker system, the evidence shows that we can precisely reflect what the performer wants, whereas your example is a little more extreme, And, indeed, that’s exactly what the district court found.

Thurgood Marshall:

Is there any such thing as quiet rock music?

[Laughter]

Leonard J. Koerner:

No.

But the issue… the issue is not whether the rock music–

Thurgood Marshall:

You’re dealing… you’re dealing with loudness.

Leonard J. Koerner:

–Yes.

But the issue–

Thurgood Marshall:

And how loud is loud?

Leonard J. Koerner:

–That’s correct.

Thurgood Marshall:

Well, that’s a hard thing to do.

Leonard J. Koerner:

But the Supreme… this Court help in Kovacs v. Cooper that you could establish standards for excessive sound and–

Thurgood Marshall:

Kovacs was the difference between a loudspeaker and an ordinary voice.

Leonard J. Koerner:

–Yes.

Thurgood Marshall:

But this is not involved in this.

Leonard J. Koerner:

No.

And we don’t pretend to regulate the speech within the bandshell area.

All we do is control loudness to the extent it doesn’t bleed into the unwilling listener area.

And, indeed, as I keep pointing out–

Thurgood Marshall:

Going back to Kovacs–

Leonard J. Koerner:

–I don’t mean to belabor it, but I believe it’s significant that of all the other groups… and there was folk, reggae, other rock concerts… every person was satisfied with the way the city-designated technician made the mix.

And interestingly enough, during the same year that RAR received a dispensation from using this system because it obtained injunctive relief, the Department of Environmental Protection for the city reviewer the sound levels at the concert.

RAR was by far the highest and they generated complaints, whereas all the other groups used this mix to their satisfaction.

John Paul Stevens:

–Let me go back to Kovacs for a second.

There they can fix the level of sound that the sound truck can… can distribute in the neighborhood.

Leonard J. Koerner:

Yes.

John Paul Stevens:

Could the city have said we want our own driver on the truck?

Leonard J. Koerner:

I–

John Paul Stevens:

We want our own driver on the truck.

He’s just as good as your driver and he… we’re sure that… that he’ll keep the sound levels down.

Leonard J. Koerner:

–And he would have controlled the sound?

John Paul Stevens:

Sure, he’d control it and he’d follow all the–

Leonard J. Koerner:

So that it wouldn’t bleed into other areas?

John Paul Stevens:

–That’s right.

Leonard J. Koerner:

And he wouldn’t substitute his judgement for that of one group?

John Paul Stevens:

That’s exactly right.

Leonard J. Koerner:

Yes, I believe that’s a method that may have been appropriate under your Court’s test.

This Court has dealt with the appropriate standard with reviewing time, place and manner.

Time, place and manner presumes that there’s going to be some limitation on free speech, but it recognizes that where there’s a significant governmental interest, that the government has a right to make this limitation.

Byron R. White:

Well, you… and your… the government interest is controlling sound here.

Leonard J. Koerner:

To the unwanted areas.

That’s correct.

Byron R. White:

And… but you not only control the sound, but you control the mix.

And… and controlling the mix as such doesn’t serve your interests in controlling the sound.

It’s just that you… you say there… you just can’t separate them.

Leonard J. Koerner:

It’s the most appropriate way to control the sound.

That’s correct.

And since mechanically the mix is not changed, and we have control over the sound, yes.

And if you look at Heffron and Albertini and the Clark case, in each case alternative suggestions were made which were less extreme than the one the government had chosen in terms of regulating the constitutional right.

But this–

Byron R. White:

Well, I know, but… I know, but… but here your regulation is such that it… it by… controlling the mix doesn’t necessarily serve the government interest of controlling the sound.

Leonard J. Koerner:

–But… it… that’s what… I would respond it does because we believe it’s the only effective way of controlling the sound because to have two people side by side creates the same confrontational problem that we had before when the police tried to control the sound, as did the other park rangers, between 1983 and 1986.

Byron R. White:

Well, if you’re going to let the performers’ technician sit with the city’s technician, I don’t know why that isn’t the same confrontation.

Leonard J. Koerner:

Because as a practical matter, whenever you have a… a group that doesn’t recognize sound limits, and you have a large audience there, and you have the city there, some things happen in the heat of battle that don’t follow a normal, orderly plan.

Indeed, the Second Circuit recognized that when they themselves had trouble with their own suggestions because they recognized it dealt with… it depended upon negotiation and agreement, ability to get along.

Sc, they said as a last resort, pull the plug.

Well, pulling the plug penalizes the listeners who have come to the concert.

It’s the most confrontational.

Yet, the circuit thought it was the least restrictive.

And, indeed, the district court in discussing that aspect found it to be the most restrictive because it stops the concert.

It is not our position that there aren’t alternatives.

But each alternative is fraught with difficulty.

Any attempt to negotiate, which we had tried between 1983 and 1987 failed, and–

Antonin Scalia:

Mr. Koerner, could I come back to the mix again?

I… I guess I don’t understand this.

I had thought that… that you can’t control the sound level without controlling the mix, that if… if you just establish a single sound level… some instruments carry further than others and, therefore, you just can’t set it at a certain level and let the person mix the various instruments any way he wants.

If you mix it a certain way, it’s going to carry further than if you mix it another way.

And the decibels and the… and the… the instruments’ relative strength are interdependent.

Is that right, or am I wrong about that?

Leonard J. Koerner:

–The record is… is a little unclear.

What the record shows, though, is that the mixer operates all of these in tandem.

And, indeed, Joseph Killian pointed out to support your conclusion, that many times concert promoters who are unfamiliar with outdoor concerts will use loudness to overcome the mixing problem so that they will make it loud as if that was the solution to properly reflecting the instruments.

Basically what the testimony is is that it’s all on one board, and one person moves all the handles in a synchronized fashion.

So, whether it is possible to have two people sit side by side is unclear from the record.

What is not possible is to have a volume control separate and discrete from the mixing board.

Leonard J. Koerner:

That presents more problems than it resolves.

Byron R. White:

But you… but you say that the city will let a… the performer’s technician sit with the city technician.

Leonard J. Koerner:

Yes, that is correct.

And, indeed, that’s what Alan–

Byron R. White:

And dictate the mix.

Leonard J. Koerner:

–Absolutely, and the district court so found, and the circuit court upheld that particular portion.

Basically this was a solution after much consideration by the special projects director and the sound consultant expert.

And the reason for that is all the other methods that were selected with the exception of pulling the plug depended on the cooperation of each group.

And, frankly, with respect to this particular group, the cooperation had been less than the optimum during the preceding history.

So, what the city wanted to do… and they had two goals… was to have a program that would reflect the sponsor’s views and at the same time assure uniform high quality.

Anthony M. Kennedy:

How does the… how does the city technician know when it’s too loud?

Leonard J. Koerner:

What happens is Mr. Killian, who’s a special events director… he attends every concert.

And he will go around the periphery of the bandshell and see whether or not the sound is bleeding into those areas.

He then will take the sponsor back there and tell the sponsor that it’s too loud.

And they then will concur.

During 1986 there wasn’t one problem for 50 to 60 events.

The only problem was the one with RAR where they had a dispensation because they had injunctive relief that allowed them to use their own concert mix.

With respect to the applicable case law, Heffron, Albertini and Clark, the test as we see to extrapolate from those cases is not whether or not the particular solution is the best, but whether or not it is effective.

Or does it serve the governmental interest in a substantial way?

In this case the record shows that what we did was effective.

Every group was satisfied that used it.

It shows that we controlled sound.

There were no more complaints from the residential areas or the Sheep Meadow.

And we preserved the interests of the unwilling listeners and we also preserved the sponsor’s artistic integrity.

That is precisely what time, place and manner is supposed to do.

And for all those reasons, we ask that the sound amplification guideline be upheld.

I have not used all my time.

If I may, Mr. Chief Justice, reserve some of it for reply if necessary.

William H. Rehnquist:

Very well, Mr. Koerner.

Mr. Kunstler?

William M. Kunstler:

Mr. Chief Justice, may it please the Court:

I want to start with agreeing in some respects with Justice Kennedy with reference to whether the… a conductor of a symphony orchestra is like the man who does the… the mix.

And I think they are very comparable.

The man that does the mix, as all the testimony indicates… I think on direct Mr. Thompson said he’s part of the band.

There is no leader, of course.

He’s part of the band.

And then the city’s expert, Gary Floyd, stated that

“you have left the decisions and esthetic choices up to that individual. “

the technician at the console.

And I was thinking we put in our brief several… several analogies which I don’t think are particularly apt such as mixing paints and so on, but I think there’s a better analogy which would fit in with Justice Kennedy’s question.

The analogy would be if they had symphony orchestras, as they do, play in Central Park, and Zubin Mehta and the New York Philharmonic always played loud and therefore the city said, in order to control the noise, we’re going to put Georg Solti in there because he’s approved by everybody.

Everybody likes him.

Anthony M. Kennedy:

But there’s no evidence in the record to bear you out.

The trial court said that you suggested this for the first time only upon information and belief after the trial and that the evidence to the effect at trial was to the contrary.

William M. Kunstler:

No.

I think it was the other way around because I think that on direct Alan Thompson said that the mixer is part of the band.

Anthony M. Kennedy:

But that’s not the finding of the district court, Mr. Kunstler.

William M. Kunstler:

Well, I think that the testimony then is belied by the finding or the finding belied by the testimony because the court of appeals found that it was uncontroverted in the record, that the mixer is part of the band.

He’s the esthetic leader of the band.

And I think if you will look on page 370 of the… of Fed. 2nd, you will find that the… that the unanimous court said it is uncontroverted in the record.

These claims are not controverted in the record, that the mixer is part of the band.

He is the esthetic leader.

And you have the city’s own technician… own expert, Mr. Floyd… and I quote him here.

“You have left the decisions and esthetic choices up to that individual. “

the technician at the console.

It is on Joint Appendix 180.

So, we have a situation where everyone agreed that the mixer is not just a mere technician who turns some knobs automatically.

He is the leader of the band.

He’s part of the band.

And to say that you’re going to put the city leader of the Band in there, I think is very much like saying you’re going to put Georg Sciti in because he plays andante and doice as against Zubin Mehta who plays loud because you’re doing the esthetic mixing with reference to a city employee whom you must use.

Anthony M. Kennedy:

I should have thought that is true, but the record doesn’t bear it out.

William M. Kunstler:

Well, I quoted to you what was said both by Alan Thompson and by Gary Floyd and what the court of appeals said about that.

I think the record does bear it out.

Now, with reference to the alternatives here, I… I was somewhat astonished to hear you say that it… you don’t use alternatives in cases like this.

And I think Justice Stevens mentioned some.

There are five alternatives that our friends, the National Park Service and I thought their brief was more for us than for the appellant in this case… the… or the Petitioner.

The National Park Service says in its regulation… this is the Solicitor General’s brief in… page 21…

“in implementing its regulation, the Park Service relies on a number of alternatives. “

ironically it’s… they add, this doesn’t include what the New York City Department of Parks does.

And there are five alternatives here that are possible short of putting in your own mixer.

One is a limiter.

It was testified to during the trial.

There’s an automatic limiter you can put on the sound, like a governor on an engine.

Second, a separate sound control is perfectly feasible, separate and off the console, and the record indicates that.

Thirdly, ordinances, which they say they don’t enforce.

But there are ordinances.

New York City has an anti-noise ordinance, and there are nuisance ordinances, breach of the peace ordinances and so on.

Fourthly, they can pull the plug.

That’s one that the National Park Service uses.

And fifthly, they can negotiate–

Antonin Scalia:

Is that feasible when you have a crowd?

I… I’ve heard riots occurring when that happens.

William M. Kunstler:

–But they pull the–

Antonin Scalia:

You have a lot of people who are there for a rock concert, and the police come in and pull the plug.

That’s–

William M. Kunstler:

–Justice Scalia, they did it twice here.

You’ll find it on JA 140 to 141, pulled twice.

There was no problem at all.

These are not large attended.

They may have 3,000.

William M. Kunstler:

They may have 1,000.

Antonin Scalia:

–Well, yours… yours might not be.

Some of the other events there may be.

I… I don’t think that’s a very happy solution, do you?

William M. Kunstler:

Well, they aid it twice and it caused no problem whatsoever.

Antonin Scalia:

Well, fine.

Sometimes you’re lucky.

Sometimes you’re not.

William M. Kunstler:

But that’s the last resort anyway.

Antonin Scalia:

It certainly depends upon the crowd, doesn’t it?

William M. Kunstler:

That’s the last resort.

Even the Park Service–

Antonin Scalia:

Well, I don’t think that’s a very feasible one, frankly.

I… in fact, I consider that more extreme than what was done.

William M. Kunstler:

–Well, that’s the last resort, but there are so many before you even reach that point.

What about a limiter?

That was testified to.

What about a separate sound control I think that Justice White was talking about?

What about enforcing those ordinances?

Anthony M. Kennedy:

Do you concede the constitutionality o’ a separate sound control?

William M. Kunstler:

Yes, I do in… because I think they have a right to regulate sound.

Now, I have a problem with that because I know how much sound is part of the sound of a rock band, and I have a certain problem with it.

But for the sake of this argument, they have a right I think to control sound, and I would agree with that.

We’re not raising the question that they don’t have a right to control sound.

We agree they do.

And I’m not sure a constitutional issue is involved there in a public park.

Anthony M. Kennedy:

And you agree the record is ambiguous as to whether sound affects mix?

William M. Kunstler:

Yes, I think I would agree with that.

If I had tried this case, I think I would have worked in more about the question of sound and mix.

And by the way, the only three complaints here, Justice Kennedy, were three letters in the record.

William M. Kunstler:

I think they’re Exhibits H 1 to 3, one by Isaac Asimov, three letters that were put in over objection as hearsay from people who said they heard the sound at Central Park West.

Anthony M. Kennedy:

Does… RAR is not a performing group itself, is it?

William M. Kunstler:

No, it’s a promoter.

It’s Rock Against Racism.

They have usually six bands–

Anthony M. Kennedy:

And so… so, you actually want to use your mixer for other bands?

William M. Kunstler:

–For the bands that come to the RAR concerts.

Anthony M. Kennedy:

But aren’t you doing the same thing the city is doing?

William M. Kunstler:

Well, no, but they choose him.

It’s the same thing that the New York Philharmonic does when it chooses Zubin Mehta.

They choose him.

The bands want to work with him.

Anthony M. Kennedy:

A hundred percent of the bands chose your promoter your… your technician rather than the city’s?

William M. Kunstler:

Oh, I don’t know if there was a vote on it, but every year we get much the same bands.

Alan Thompson–

Anthony M. Kennedy:

Well, but it’s important if you’re saying each… each group has to have its own technician and it’s like Zubin Mehta, and now you’re saying that RAR does it for all the groups that appear.

William M. Kunstler:

–Yes.

They do it–

Anthony M. Kennedy:

It seems to me quite inconsistent.

William M. Kunstler:

–They do it for all with the consent of the groups.

He works with the groups before they get there.

He works with them when they’re there.

They know him from past experience, and they like what he does.

Anthony M. Kennedy:

Well, is there testimony that any of the specific groups objected to the city’s technician?

William M. Kunstler:

No, they never had it, not these groups.

They never had it because they… there was a dispensation for them.

They got the… the injunction, and then they got the ruling of the court of appeals, Sc, there is nothing in record about that.

I might add that the one way that I think is most feasible is negotiating the decibel level.

And there’s a misstatement in the reply brief of the Petitioner.

On page 8, they say the evidence also showed that RAR repeatedly violated agreed-upon sound levels in the face of repeated requests by police to reduce the sound.

William M. Kunstler:

That is untrue.

And if you look at the Joint Appendix references there, you will find nothing in there about agreed-upon sound levels at all.

They never proposed that.

In fact, as the court of appeals found… and I’m quoting from page 371… the city rejected the alternative of negotiating a decibel level for each event with the sponsor.

They rejected what would be the least intrusive and the least restrictive way, which would be negotiating a decibel level, which is exactly what the National Park Service does.

That’s one of their recommended alternatives.

And, Justice Scalia, I think that is the most feasible way.

You don’t intrude.

You don’t force them to use a conductor they don’t want or a sound mixer they don’t want.

And you negotiate a decibel level.

It was never done in this case.

Antonin Scalia:

What do you do when they violate the decibel level?

Pull the plug?

William M. Kunstler:

Well, there are… just what the Park Service says it does.

Number one, the Park Service says… and they spell it out very clearly… that when the volume gets over the level, they send over a representative or a ranger, park ranger, who says you’re over it.

Stop it.

And if they don’t stop it, then you have the alternatives of criminal actions.

You have the alternatives of pulling the plug, which I would say… agree with you should be the last in any concert.

And by the way, Rock Against–

Antonin Scalia:

I thought that had been done with your group.

Although there wasn’t a specified decibel level, I thought there was indication in the record that the police had told the group you were playing too loud.

And they said, okay, we’ll lower it, and then it went up again.

And then the police came back–

William M. Kunstler:

–That is that evidence–

Antonin Scalia:

–xxx up and down.

William M. Kunstler:

–That evidence is in the record, but there was no negotiated decibel level before the concert.

Antonin Scalia:

Well, what difference does it make whether… whether they tell you’re too loud, and you say, okay, I’ll lower it, and then you get too loud again, or whether they say you’re too loud because you’re three points over this decibel level?

William M. Kunstler:

Justice Scalia, a policeman cannot judge decibel level without an instrument.

There was never an instrument used here at all.

There is a way to measure decibel level.

William M. Kunstler:

The Park Service uses it.

The police department is not equipped to do that, and they didn’t do it.

Antonin Scalia:

Well, are you contesting the… the accuracy of the evidence that they got louder again when the police left?

William M. Kunstler:

Not at… not at all, but how do you know what the decibel level–

Antonin Scalia:

Well, I don’t know how much louder they got, but I know they got louder than they had agreed to reduce it to.

William M. Kunstler:

–No.

There was no agreement as to decibel level.

That’s what I’m trying to say.

No agreement whatsoever.

The city refused to negotiate that, and that’s why the court of appeals said that they rejected that alternative.

If there had been… you were just saying to me a policeman said it was too loud.

Antonin Scalia:

Well, I don’t know.

Mr. Kunstler, you know, when I was a young man, occasionally I had been at parties that got a little loud.

And… and an officer would come by–

William M. Kunstler:

Is this a confession?

Antonin Scalia:

–An officer would come by.

He would not have a decibel meter.

He’d say the party is too loud.

And I have heard that on some occasions, and not at parties I was at, it would get loud again.

[Laughter]

And the officer would come back without a decibel meter.

I mean, I–

William M. Kunstler:

I know.

Antonin Scalia:

–This is just unrealistic.

William M. Kunstler:

But, Justice Scalia, I think what you’re saying is unrealistic.

What happens in a dorm or in a residential house, when a party gets too loud and the policeman says it’s too loud, is different as to whether rock music or music is bleeding into another area.

And they have tests to show I think… it’s not in the record, but I’ll tell you what I found, that 110 decibels is the proper decibel limit not to go into the Sheep Meadow.

And I think when you’ve got to… when you’ve got a thing like this, you can’t use the analogy of a private party.

Antonin Scalia:

No matter what instruments you’re using?

I mean, if you’re using, you know, a bank of flutes all at 110 decibels, it’s the same as if you’re using–

William M. Kunstler:

No, but 110 is the maximum–

Antonin Scalia:

–clarinets?

William M. Kunstler:

–is the maximum decibel strength that will bleed it into another area.

Antonin Scalia:

And… and–

William M. Kunstler:

Flutes won’t do that.

I agree with you.

Flutes will not reach that decibel level.

William H. Rehnquist:

–Mr. Kunstler, as I understand the court of appeals’ opinion here, they said that the city had to use the least intrusive means of regulating the volume in your opinion, is that the correct test under our cases?

William M. Kunstler:

I think it is.

I think… admitting they nave a right to control noise, which I admit, I think that the least intrusive way into First Amendment expression must be used.

William H. Rehnquist:

And what… what is the leading case from our Court, do you think, that supports that proposition?

William M. Kunstler:

Well, I think that essentially one of the tests which I think was used in O’Brien, although I don’t think O’Brien and that four-prong test applies here when they use the term “least intrusive means”… I think in many of your cases… none are like this case.

This is a sui generis case.

William H. Rehnquist:

But what is the principal case you would rely on here to us for the proposition that the city must use the least intrusive means?

William M. Kunstler:

I think, essentially I would start with O’Brien and go through some of the other cases that you’ve talked about, Boos v. Barry, maybe–

Byron R. White:

What would you do about–

William M. Kunstler:

–Maybe Frisby v. Schultz.

I mean, there are a number of cases.

Byron R. White:

–What would you do… what would you do about Clark and Albertini?

William M. Kunstler:

I don’t think they apply.

Byron R. White:

Well, they said–

William M. Kunstler:

Sleeping in a park has nothing to do with sound levels.

Byron R. White:

–I know, but this is a time, place and manner question, isn’t it?

William M. Kunstler:

I’m not even sure this is a time, place and manner.

Byron R. White:

Let’s assume it is.

William M. Kunstler:

They keep talking about that.

Byron R. White:

Assume it is.

Assume it’s a time, place and manner restriction.

Then Albertini and Clark say that the least restrictive alternative hasn’t any place in this kind of analysis.

William M. Kunstler:

But I don’t think this is a time, place and manner at all.

William M. Kunstler:

I think this is a curd on free expression.

This is an attempt to regulate free expression.

Music is within the First Amendment.

I think it’s an attempt to regulate it.

I don’t think it’s a question of saying time, place and manner like sleeping in Lafayette Park, for example, or Albertini, whether you can get on after being kicked off a military reservation.

Byron R. White:

Well, it’s a… it’s saying what you have to do if you want to make noise in a park.

William M. Kunstler:

Well, parks are a place where you’re supposed to have all sorts of controversy.

I think… which is different than Hickam Air Force Base in Hawaii.

And it’s different than Lafayette Park.

I don’t agree with Clark.

Byron R. White:

I wouldn’t think you would.

William M. Kunstler:

It’s community control, you know.

[Laughter]

And… and… and, you know, I’m sensitive it was your opinion and I’m going into the storm by saying–

Byron R. White:

Well, it was the Court’s opinion.

William M. Kunstler:

–I understand, but you authored it.

And what I’m saying is this, Justice White.

I don’t think it’s a comparable situation, You’re really not talking so much on… although I agree thoroughly with Justice Marshall’s definition and analysis of sleep in conjunction with the plight of the homeless in Lafayette Park, but here you’re dealing with something else.

You’re dealing with an expression, an oral expression protected by the First Amendment.

And I think you can make an argument, as you did, that sleep is not such an oral expression.

But I think here you’re dealing with an oral expression.

I don’t really think this is a time, place and manner case at all.

I think this is a case, can you control artistic expression by using a state employee.

And I think in that case, you… though I recognize noise can be controlled, I think there You must use the least intrusive way.

John Paul Stevens:

But, Mr. Kunstler, let me interrupt.

You… you agreed earlier that noise control is permissible or something.

Did you mean to say that you can control noise by using a state employee?

Supposing you just had a sound amplification system in a… we may be making speeches and all the rest.

You don’t want it to get too loud because it disturbs the neighbors.

Can you… do you concede that the state could insist on having its own employee at the microphone?

William M. Kunstler:

No.

I answered Justice Kennedy’s question arguendo.

I don’t think that noise should be controlled by the state that… constitutionally.

I said, thought, I would agree that noise can be controlled in some fashion, ordinances or what have you.

John Paul Stevens:

Oh, well, that’s–

William M. Kunstler:

I will not agree to the constitutionality aspect of it.

John Paul Stevens:

But you don’t agree that the–

William M. Kunstler:

I don’t want to give that–

John Paul Stevens:

–Well, I thought you had.

I thought you had agreed.

William M. Kunstler:

–I thought I had, too.

That’s why I’m making this second statement.

[Laughter]

John Paul Stevens:

Oh, okay.

So, you would make basically the same argument if this was just you didn’t have the mix to make it more of an artistic thing, but you just say the part of the artistic presentation is the sound volume, and we do not agree that you can have a state employee sitting with his thumb on the… on the button.

William M. Kunstler:

And, Justice Stevens, sound is an integral part of the artistic expression of rock groups.

There’s no question about it.

And so, I didn’t want to give the impression… I guess I did… that I agree that constitutionally you can just control noise.

All I am saying essentially that you can create situations where you have ordinances against… I think in the Kovacs case it said loud and raucous noise in sound trucks.

And I think this Court has held a number of times that that can be controlled, not by a man at the console, but by ordinances and criminal actions.

Byron R. White:

Well, you… you mentioned that one of the possible alternatives was the automatic governor–

William M. Kunstler:

Yes.

Byron R. White:

–that would just be attached to the machine and here would be a… here would be a state instrument.

William M. Kunstler:

No, not by… run by the state.

Byron R. White:

Well, I know it wouldn’t be run.

It would be automatic.

William M. Kunstler:

It’s automatic.

Byron R. White:

And so, when it gets too loud, it just turns it down.

William M. Kunstler:

That’s right.

Byron R. White:

Well, would that be constitutional?

William M. Kunstler:

Well, I’m not… it’s not unconstitutional because no state official runs it.

This is something the band would do voluntarily.

Byron R. White:

I know but it’s something that… it’s something that the state insists on.

It insists that… that people putting on the concert have this automatic noise regulator on their machine.

William M. Kunstler:

No, that wasn’t my point, that they would insist upon it.

They would set the decibel limit, and then the band, in order to control itself and keep under… from coming under the criminal statutes, could use the limiter or the governor on the band.

I wasn’t suggesting the state could do it at all.

And I’m not even suggesting, Justice White, it’s the best thing for artistic music.

I think the best thing is to negotiate decibel lengths… or limits the way the parks department does… National Park Service… and then enforce the law.

They’ve never enforced the law here.

They’ve never even negotiated the limits even though they say in their brief that they do.

You won’t find it in the record.

John Paul Stevens:

But, Mr. Kunstler, I don’t understand what the source of their obligation to negotiate is.

If they picked your 110 decibel level and said that’s what we think is reasonable and you comply with it or you don’t get a permit, what would be wrong with that?

William M. Kunstler:

I don’t think anything is wrong with it.

John Paul Stevens:

So, I mean, there really is no constitutional obligation to negotiate with you.

They can make the rule that they think would protect the–

William M. Kunstler:

They can make the rule.

John Paul Stevens:

–the citizens’ interest–

William M. Kunstler:

And the normal thing… National Park Service has made the rule that we will establish a decibel level.

And they say they have 1,500 events a year where sound amplification is used.

We will reach a decibel level with you and you stay under it, within it.

John Paul Stevens:

–Is there any testimony–

William M. Kunstler:

I think that’s the least intrusive.

Anthony M. Kennedy:

–Excuse me.

Is there any testimony in this record that a decibel level is technically feasible for controlling rock music?

William M. Kunstler:

No, I don’t remember any testimony about decibel level being feasible for rock music or unfeasible or nonfeasible for rock music.

But I notice in the Park Service regulations and in the Solicitor General’s brief that they have rock concerts at national parks, many of them, and that they establish a decibel level.

They monitor it through a… an expert or a ranger or what have you, and they have all those alternatives.

They use the word “ironically” about what could happen here, and I think it is ironic that they’re attempting really to become part of the band, to have a state official as part of the band.

Antonin Scalia:

Mr. Kunstler, they say monitor the decibel level.

Do we know where they monitor it?

Is it on the Sheep Meadow or where the… where the music originates?

William M. Kunstler:

We don’t know.

I don’t think there was any testimony that I recall about–

Antonin Scalia:

Well, I… I keep coming back–

William M. Kunstler:

–monitoring it.

Antonin Scalia:

–to the fact, I am… I am not sure that you can just set one decibel level and that every mix of music that you get is going to carry the same distance so long as it is only at that decibel level.

William M. Kunstler:

Well–

Antonin Scalia:

I… do we know from the record whether… whether that’s the case?

William M. Kunstler:

–No, but the Park Service says that they do it.

Antonin Scalia:

Well, that’s pretty important because if how far it carries depends not just upon the decibel level, but also upon what instruments are being played and what the mix of those instruments is, then all of your solutions regarding decibel level at the source are simply not solutions at all.

William M. Kunstler:

Justice Scalia, I don’t think it’s hard to post someone at the Sheep Meadow who has ears and can hear if it’s bleeding in.

In fact, you will find in the record here, in the preliminary record, there was a man named Mr. Schulman who was their expert during the preliminary injunction hearings who said he stood at Central Park West and here’s his testimony.

He said he had a man standing there.

He could hardly hear it.

That’s on page 449 of the first… the Joint Appendix, Volume II of the Joint Appendix.

They can monitor that easily enough.

That’s just as much as a policeman standing outside your dorm who here’s it bleed into other parts of the college.

I assume this was in college, but I won’t press you on it.

[Laughter]

Antonin Scalia:

I made it up, Mr. Kunstler.

[Laughter]

William M. Kunstler:

But the point is it’s easy to have someone stand at the Sheep Meadow.

That has been designated since this all began as a quiet zone by Mayor Koch.

To have someone stand there.

If it’s getting into the Sheep Meadow, then you don’t even have to care about decibels.

It’s going too far.

But you can negotiate.

They can negotiate decibel limits.

William M. Kunstler:

And I agree; different instruments are different.

John Paul Stevens:

Not only different instruments, but different–

William M. Kunstler:

xxx.

But you don’t find flutes in a rock band.

John Paul Stevens:

–No.

It’s not just different instruments, different weather conditions.

If the wind is blowing–

William M. Kunstler:

And weather conditions, wind conditions–

John Paul Stevens:

–In one direction, you won’t hear it in the Sheep Meadow.

William M. Kunstler:

–on a particular day.

So, just negotiating a decibel limit is not by itself enough, because you can… I think Justice Stevens correctly says that wind has a big factor.

The humidity has a factor.

Everything plays a factor as Alan Thompson testified.

But then you have someone stand at the Sheep Meadow at the outskirts or on Central Park West or Central… or Fifth Avenue.

If it gets over there, it’s beyond… it doesn’t matter what the decibel limit is, it’s beyond what it should be.

Then they go and report to the band.

Thurgood Marshall:

You’d certainly have a different decibel level for the Philharmonic and these rock bands, wouldn’t you?

William M. Kunstler:

I’m not so sure.

I’ve heard the Philharmonic on some–

Thurgood Marshall:

As loud as a rock band?

William M. Kunstler:

–Well, when those kettle drums go, it’s loud.

I heard it at the Abyssinian Baptist Church when the Philharmonic came, and it is loud.

Now, it’s not as loud ordinarily as a close, confined club–

Thurgood Marshall:

Sorry I asked.

William M. Kunstler:

–where you have a rock band.

[Laughter]

What’s your next question?

Antonin Scalia:

That was the 1812, Mr. Kunstler, you were talking–

[Laughter]

William M. Kunstler:

I guess that would be it.

William M. Kunstler:

I’ve heard the Philharmonic, but the Philharmonic works in a much bigger auditorium where sound is dissipated, like Carnegie Hall.

A rock band usually plays in the Bitter End or in a small room where you have close confinement, and they do love it loud.

No question about it.

My daughter… well, I won’t go into that.

[Laughter]

In any event, I think they… what they’ve done here… I think… I don’t think this is just time, place and manner.

I think this is a pure First Amendment freedom of expression case.

They want to put Georg Solti in for Zubin Mehta, essentially, even though this is a different type band and say everybody loves Georg Solti.

He’s a city employee.

We all love him.

Many have heard him, and therefore he’s the man that’s going to do it.

And, Zubin Mehta, you stay out of the park because that’s really what they’re saying.

The sound mix man… despite what Justice Kennedy tells me is not in the record, the sound mix man in the record is classified as part of the band as the esthetic creator.

And in fact, you’ll find in their own brief they talk about the city, and the Petitioner’s brief talks about the fact that there is a… an esthetic balance that the mixer does.

In the Solicitor General’s brief, there’s one very interesting statement, which occurs on page 15.

The Solicitor General says,

“Here it could be said that the city’s sound amplification guideline prohibits outright those aspects of artistic expression which are inherent in the selection and direct control of the bandshell’s sound system. “

“There’s the Solicitor General’s brief that they say are in… prohibit outright those aspects of artistic expression. “

And that’s what we have here.

It’s a sul generis case where the state is trying to essentially mix the sound of the band, a state employee using state-hired equipment.

And the fact that that man may satisfy others, that New York Sound may satisfy others… others like it, does not mount to a hill of beans here.

It’s not what satisfies others; it’s what satisfies the RAR and the bands which it employs.

In fact, on page 16 of the Petitioner’s brief, they recognize the “esthetic balancing” of New York Sound, and that New York Sound showed “remarkable sensitivity to that problem”.

Well, that problem is what you have in this case, the problem of whether the state is going to mix the sound, under the First Amendment, of rock bands and that that satisfies the First Amendment.

I don’t think it does, and I don’t think any of your cases really have met this problem as to superimposing a state official to manipulate and to run esthetic balancing of rock bands.

Byron R. White:

But the finding is that… that the state would do whatever the… whatever your client told them to do about the mix.

William M. Kunstler:

You can’t do that, Justice White, because there are some times–

Byron R. White:

Well, you did say… you did say the court… the finding was just wrong then.

William M. Kunstler:

–Remember the court’s first finding was just the opposite when it issued the preliminary injunction.

It changed during the hearing.

Byron R. White:

Well, after consideration.

William M. Kunstler:

Well, but I think when it heard the words “until their ears bleed”, I think that marked the change in Judge Haight’s attitude toward this case.

But I… if you read… in the testimony–

Byron R. White:

But he never… it’s… I thought the way you judge this case on the basis that the state… the state employee will follow the directions about mix given to him by the performer.

William M. Kunstler:

–But you can’t do it.

You see it in the record.

You can’t do it because there are over 200 operations in a single minute some time as to those knobs.

You know, there are eight times 22 knobs.

And to get a message across to the technician that, no, that’s not the way they want it–

Byron R. White:

So, the judge just didn’t know what he was talking about.

William M. Kunstler:

–Well, I don’t think you’re under the… the purely erroneous rule here of National Gypsum.

I know that’s cited by the adversary here.

I think you’ve got a… a pure First Amendment situation here.

The judge in his findings did not dispute the fact it was an esthetic mix, and that the… someone sitting next to the sound technician cannot do the trick.

Alan Thompson testified that you cannot do the trick.

You have to do it yourself.

And they allow five minutes a band here.

If you notice, they have 45 minutes for, I think, eight or nine bands.

And you just can’t even get the drift in five minutes of these rock bands, which are very sensitive.

This is all electronic music, and the mix is crucial to it.

It’s more crucial to it than with the Philharmonic which doesn’t use… thank God… electronic equipment, but uses the… I think someone said… Justice Stevens… the old-fashioned instruments.

I think I’ve spoke my piece and I can’t think of anything more to say.

Unless there are questions from the Court, I will sit me down.

William H. Rehnquist:

Very well, Mr. Kunstler.

William M. Kunstler:

Thank you, Justice Rehnquist.

William H. Rehnquist:

Mr. Koerner, you have six minutes remaining.

Leonard J. Koerner:

Thank you, Mr. Chief Justice.

One of the problems with this case is that the Respondent has just carried his burden of going forward which he didn’t do at the trial court.

A lot of statements he made do not… are not reflected in the record.

First, with respect to a decibel level, he indicated we never tried to negotiate a level.

Leonard J. Koerner:

That is inaccurate.

At page 343 and 384, it says quite clearly that in 1984 we suggested a decibel level, which was precipitated by their inquiry as to whether or not we should have one.

And when we agreed to try it as a test, they didn’t show up to try to revise it, and then took the position that any decibel level would violate their constitutional rights.

So, we tried that alternative, and it was because of their stubbornness, not ours, that it wasn’t given a fair test.

Second, with respect to the mix itself, Gary Floyd, our sound consultant, did not say that the mix is part of the band.

At 180 to 181, what he specifically said was a good mixer can reflect the band’s artistic inclinations within five minutes.

Second, Alan Thompson, the Plaintiff’s own witness… I would like to just read this.

It will only take a second, but it summarizes our case because he did not disagree.

In asking to describe how he mixes at the board, he said specific–

William H. Rehnquist:

Where are you reading?

Where are you reading from?

Leonard J. Koerner:

–At the bottom of page 100 to the top of 101 of the Joint Appendix.

“Yes, I am at the board, and basically during the performance I am part of the band, because I am balancing all of their instruments together to sound right to their taste. “

“How do you know what their taste is? “

“They have their manager and their own sound mixer present at my elbow. “

“Or they tell me what they want previously. “

And he goes on.

That’s precisely what we do.

And that is why the district court confirmed that we could reflect the mix.

With respect to the sound itself as to why we didn’t set a decibel level, that was one of the options considered by our consultant.

But the reason he didn’t set a general decibel level is because it varies based on foliage, temperature and crowds.

And, therefore, a decibel level for each… for each event would not be appropriate and it may not even be appropriate for the very event you set ore because the crowds keep forming.

As the crowds get larger, the decibel level would have to be changed.

And, therefore, there would be no objective standard they could count on.

Finally, with respect to the separate volume control, which has now come up as a suggestion because it was mentioned by the Second Circuit, that was never mentioned up to the point of the decision of the Second Circuit.

No one ever suggested a separate volume control.

And, in fact, such a control would cause more problems than it would solve because a control such as that would have to be hooked into each mixer that was brought to the many concerts held at the bandshell.

As a consequence, those mixers would have to be compatible.

To the extent that the mixers are not compatible, we would not be able to offer the event.

Second, if you did have a separate volume control, far and away from the mixer, basically what you could have is competing controls.

Leonard J. Koerner:

Each time we lowered the sound, an individual at the mixing board would be able to manipulate his portion through the amplifiers and nullify the competing controls.

Finally, in addition, by having a separate volume control, it would cause a signal loss in the mixer and could upset the balance of the mix.

So, frankly, that particular solution would actually affect the esthetics, and it would… should be the least desirable.

And that is why the city chose the method it did and why it was accepted by every person that used it for… in the year 1986.

Thank you.

William H. Rehnquist:

Thank you, Mr. Koerner.

The case is submitted.