802 Legal Corner: Can You Hear Me Now?

Music is Free Speech Protected by the Constitution

Volume CIV, No. 7/8July, 2004

Harvey S. Mars, Esq.
Local 802 Counsel
Leibowitz & Mars

Since every summer we celebrate the birth of our nation, I believe it is appropriate to review constitutional issues relevant to professional musicians.

While many musicians do not realize it, musical entertainment is actually considered a form of expression protected by the First and 14th Amendments of the Constitution. Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981).

Any public curtailment of musical expression must be legally justified and supported rationally. Thus, the state will be able to limit musical expression only if it can demonstrate that the limitation constitutes a reasonable “time, place and manner” restriction. Clark v. Community for Creative Nonviolence, 468 U.S. 288 (1984).

Litigation over what constitutes a reasonable time, place and manner restriction on musical expression has led to some interesting court decisions. In this article I’ll highlight three of them.

In 1990, the U.S. Court of Appeals for the Second Circuit held that a New York City ordinance prohibiting the use of amplifiers by musicians on subway platforms was a reasonable time, place and manner restriction within the meaning of the First Amendment. Carew-Reid v. MTA, 903 F. 2d 914 (1990).

The court found the ban to be justified because it had as its objective the elimination of excessive noise on subway platforms and not the suppression of the kind of music which was being played.

On the other hand, in 2000, the U.S. District Court for the Southern District of New York held that a regulation which imposed a decibel limitation on amplification of sound systems used by street musicians was unconstitutional because it excluded sounds made by auto horns, accelerating buses and ambulance sirens. Turley v. Giuliani, 86 F. Supp. 2d 291 (S.D.N.Y. 2000).

The court deemed the ordinance not to be a reasonable time, place and manner restriction because it could potentially become a means of suppressing particular forms of music. The ordinance was unlawful because it held the potential for content-laden discrimination.

Along the same lines, in 1986, the New York County Supreme Court invalidated a New York City ordinance which prohibited wind and brass instruments from playing in unlicensed clubs. Chiasson v. N.Y. City Department of Consumer Affairs, 505 N.Y.S. 2d 499 (N.Y. Sup. Ct. 1986).

That ordinance was invalidated because the city had failed to articulate what interest it had in restricting the type of musical instrument which could perform in unlicensed clubs. Such a restriction was, in fact, deemed to be based upon the content of musical expression, rather than a justifiable time, place and manner restriction. (I guess the City Council disliked horns).

As a result of these decisions, musicians must bear in mind that while their art is a constitutionally protected form of speech, the state may be able to place limitations on their freedom of expression if it can demonstrate a rational need for the restriction unrelated to its content.

Nothing in this article should be construed as formal legal advice given in the context of an attorney-client relationship.