491 U.S. 781 (1989)
The city of New York owns the Naumberg Acoustic Bandshell in the southeast portion of Central Park.1 This amphitheater and stage structure faces west across a grassy open area that can accommodate 6,000 to 8,000 people.2 The Sheep Meadow quiet zone and Central Park West residences lie within its sound range.3
Rock Against Racism is an unincorporated association dedicated to the espousal and promotion of antiracist views.4 It sponsored annual programs of speeches and rock music at the bandshell each year from 1979 through 1986.5 RAR furnished its own sound equipment and sound technician for the performing groups.6
Over the years the city received numerous complaints about excessive sound amplification at respondent's concerts from park users and residents of areas adjacent to the park.7 On some occasions RAR was less than cooperative when city officials asked that the volume be reduced.8 At one concert police cut off power to the sound system, causing the audience to become unruly and hostile.9
Before the 1984 concert city officials met with RAR representatives and agreed to monitor sound levels at the edge of the concert ground with revocation of the permit if limits were exceeded.10 Levels still exceeded acceptable limits for sustained periods despite warnings, resulting in two citations.11 The following year the city declined to grant a permit citing prior noise and crowd control problems but later issued one after RAR agreed to abide by regulations.12
The city then developed comprehensive Use Guidelines for the bandshell promulgated on March 21, 1986.13 These guidelines require sponsors to use only the Department of Parks and Recreation sound amplification system including amplifiers, speakers, monitors, microphones, and processors along with a professional sound technician employed by the city at no cost to the sponsor.14 The goals are to provide the best sound for all events and insure appropriate sound quality balanced with respect for nearby residential neighbors and the Sheep Meadow quiet zone.15
RAR returned to the United States District Court for the Southern District of New York and obtained a preliminary injunction against enforcement of the sound-amplification rule.16 This allowed it alone among 1986 users to employ its own equipment and technician, after which the concert again generated complaints.17 RAR then amended its complaint to seek damages and a declaratory judgment that the guideline was facially invalid.18 After five days of testimony the district court upheld the guideline while the Court of Appeals for the Second Circuit reversed.
Whether the city's sound-amplification guideline for the Naumberg Bandshell is content neutral?19
A time, place, and manner restriction is content neutral if the government's purpose is unrelated to the content of the expression and the regulation is justified without reference to the content of the regulated speech.20
Yes. The principal justification for the guideline is the city's desire to control the volume of music at the bandshell, which has nothing to do with content.21 The guideline requires use of city-provided equipment and technician to provide the best sound quality and control excessive volume.22 The technician's discretion is limited by the requirement to make reasonable accommodations to the sponsor's wishes regarding sound mix and volume level.23
The city has enforced the guideline against a wide variety of performers, not solely against RAR.24
The guideline is content neutral.25
Related opinions on this issue
Joined by Justice Brennan
Justice Marshall agreed that the Guidelines are content neutral as they apply to all bandshell users irrespective of the message of their music.26 He argued that the city's control over sound equipment still raises serious concerns because judgments about sound quality and volume can mask disapproval of the music itself.27 Government control of the sound-mixing equipment necessitates detailed and neutral standards to prevent such masking of content-based decisions.28
Marshall emphasized that without these safeguards the city's technician could exercise discretion in ways that effectively censor performances based on the content of the music, diverging from the majority's acceptance of flexible standards and administrative practice as sufficient protection.
Whether the city's sound-amplification guideline is narrowly tailored to serve a significant governmental interest?29
A time, place, and manner restriction is narrowly tailored if it promotes a substantial government interest that would be achieved less effectively absent the regulation and does not burden substantially more speech than is necessary to further the government's legitimate interests.30
Yes. The city has a substantial interest in protecting citizens from excessive noise and in ensuring sufficient sound amplification for audiences at bandshell events.31 The requirement that sponsors use city-provided sound equipment and technician directly furthers these interests by eliminating problems of inadequate equipment and unskilled technicians.32 The guideline is not substantially broader than necessary because it does not ban all concerts or amplification and allows the technician to defer to sponsors on sound mix while retaining control over volume.33
The guideline is narrowly tailored to serve significant governmental interests.34
Related opinions on this issue
Joined by Justice Brennan
Justice Marshall contended that the Guidelines are not narrowly tailored because the city could achieve its interest in controlling volume through less intrusive means such as monitoring sound levels at the perimeter, communicating with sponsors, and pulling the plug if necessary.35 Government's interest in avoiding loud sounds cannot justify giving government total control over sound equipment any more than its interest in avoiding litter could justify a ban on handbill distribution.36 The majority's approach abandons the requirement that restrictions on speech be narrowly tailored in any ordinary use of the phrase.37
Marshall stressed that the availability of effective alternatives like direct enforcement of noise ordinances demonstrates that the city's monopoly on equipment burdens substantially more speech than necessary.
Whether the city's sound-amplification guideline leaves open ample alternative channels for communication?38
A time, place, and manner restriction leaves open ample alternative channels for communication if it does not ban any particular manner or type of expression and permits the communication of the speaker's message through other means.39
Yes. The guideline does not ban all concerts or the use of amplification equipment at the bandshell.40 Sponsors may still hold concerts and communicate their messages, including antiracist views, but must use the city's equipment and technician.41 There has been no showing that the remaining avenues of communication are inadequate.42
The guideline leaves open ample alternative channels for communication.43
Whether the city's sound-amplification guideline is valid under the First Amendment as a time, place, and manner restriction?44
A time, place, and manner restriction on speech in a public forum is valid under the First Amendment if it is content neutral, narrowly tailored to serve a significant governmental interest, and leaves open ample alternative channels for communication.45
Yes. The bandshell is a traditional public forum.46 The guideline is content neutral because its purpose is to control volume unrelated to content.47 It is narrowly tailored because it directly advances the city's interests in noise control and adequate amplification without burdening substantially more speech than necessary.48 It leaves open ample alternative channels because it permits concerts with city equipment.49 The Court of Appeals erred in requiring the least intrusive means.50
The guideline is valid under the First Amendment.51
Related opinions on this issue
Joined by Justice Brennan
Justice Marshall dissented, arguing that the Guidelines constitute an impermissible prior restraint because they give the city exclusive control over sound equipment and lack the procedural safeguards of narrow standards and prompt judicial review, allowing censorship in advance of expression.56 The majority's conclusion places the Court's imprimatur on a quintessential prior restraint incompatible with fundamental First Amendment values.57 Whether the city denies a performer a bandshell permit or grants the permit and then silences the performer's music, the result is the same censorship of speech.58
Marshall warned that the decision eviscerates the narrow tailoring requirement and permits government to control speech before it reaches the audience.