The U.S. Constitution provides a fairly robust outline of the rights and freedoms for the residents of our country. One of those rights is the right to freedom of speech – and by extension, freedom of expression – as defined in the First Amendment.
Still, the right to freedom of speech and freedom of expression is not without limitation. At times, government authorities may implement parameters around our freedom of speech for the purposes of furthering societal interests.
But governments obviously can’t just do whatever they want in suppressing or regulating our freedom of speech. And government action that affects freedom of speech and freedom of expression is subject to different standards of scrutiny by the courts, depending on the circumstances.
The Three Standards Used to Judge a Government Action That Infringes upon Constitutional Rights
According to The First Amendment Encyclopedia, there are actually three standards for review of any government action that is alleged to have infringed upon Constitutional rights. They are strict scrutiny, intermediate scrutiny and the rational basis test.
Strict scrutiny is the most intense level of judicial review. The rule under strict scrutiny is that government action will only be upheld as legitimate if the government used the least restrictive means of advancing a compelling or extremely important societal interest.
The mid-level is called intermediate scrutiny. This level of judicial review requires that the government use narrowly tailored means to advance any substantial or important societal interest.
The lowest level of scrutiny is called the rational basis test. This test requires only that any government action taken must be rationally related to a legitimate societal interest.
The key question for free speech issues is determining which of these standards apply. Historically, the courts have actually applied two of these tests to First Amendment challenges. Content-neutral government action is subjected to the intermediate scrutiny test, while content-based or content-specific action is subjected to the strict scrutiny test.
What this means is that if a government action regulates freedom of speech in a way that gives no preference to any particular kind of speech, then the intermediate standard applies. But if the action had the intent and/or effect of promoting some kinds of speech and/or inhibiting other kinds, then the strict test applies.
Imagine that a town’s mayor passes a law or ordinance that says no person or organization may hold events or speeches in the town square after 10 p.m. In this situation, the intermediate test would likely apply.
Why? This rule is not specific to the content of speech. It pertains to any and all kinds of speech that the town’s citizens might wish to make.
But if the town’s mayor instead says that the only type of speech permitted in the town square after 10 p.m. is speech that is supportive of Christianity, the strict scrutiny test would probably apply. Now, the mayor’s rule concerns the content of what is being said or expressed, interfering with freedom of expression.
Related link: Intellectual Property Protection and Making News Reports
Cinevision v. City of Burbank Challenged Freedom of Expression
One example of a freedom of expression challenge can be found in Cinevision v. City of Burbank, a federal case from the 1970s and 1980s that was tried in California and reviewed on appeal by the Ninth Circuit. In this case, the city council for Burbank, California, was sued by concert promoter Cinevision over its decisions to deny certain kinds of musicians the ability to perform in the Starlight Bowl.
In the case, Cinevision had an arrangement with the City to coordinate the musical artists who would play at the Starlight Bowl. But in the late 1970s, some new council members joined the City government, and the city began rejecting proposals from Cinevision for artists who played “hard rock” music. So Cinevision sued on First Amendment grounds.
First, there were some procedural challenges to Cinevision’s suit. The City initially attempted to argue that the Starlight Bowl, while built on public property, could not properly be described as a “public forum.” As a result, no rights or expectations to permit speech of any kind there should have ever existed in the first place.
The premise of the City’s argument makes sense. After all, citizens don’t have unfettered rights to exercise free speech on any public property at any time.
For example, if you tried to walk into your local DMV or tax collector’s office and stage a rally, you would likely meet resistance. Because even though those facilities might be on public property, there are limits around what kind of conduct is permitted there.
But Merriam-Webster defines a public forum as “a place that has a long-standing tradition of being used for, is historically associated with, or has been dedicated by government act to the free exercise of the right to speech and public debate and assembly.” Consequently, public forums are indeed the kinds of public property designated for speech and expression.
The City also argued that the Starlight Bowl, an outdoor amphitheater, was fenced in, seldom used and locked when not in use. The City’s lawyers contended that it would be inappropriate to describe that venue as a public forum.
But the courts were not persuaded by this argument. They opined that, because the City had historically permitted musical artists and other entertainers to perform in the Starlight Bowl, they had effectively transformed it into a public forum. As a result, they could not arbitrarily deny requests for speech and expression to be made there.
The next procedural argument from the City came in the form of a challenge to standing. According to the Legal Information Institute, “standing” is defined in the law as a party’s capacity to bring a lawsuit. In federal court, a party’s standing in claims against the government requires – among other things – that a party has suffered an injury and that there has been a causal connection between the government conduct being challenged and the injury another party sustained.
In other words, a party must have been personally and materially affected by the government conduct described in the lawsuit. If you witness someone else suffer under government action, you cannot simply sue on their behalf. Instead, you yourself must have a personal interest in the matter.
In the Cinevision case, the City argued that Cinevision lacked standing because it was just the concert promoter. The artists were actually the ones whose First Amendment rights were affected by the decisions to reject the concert proposals. Cinevision was never planning to personally speak or express anything.
In fact, Cinevision did not even know what songs the artists would play at the concerts in question. So the City contended that Cinevision was precluded from bringing the lawsuit.
But the court disagreed. While Cinevision was not personally planning to make any speeches, they had a pecuniary interest in the speech and expression of the artists who they wanted to perform at the Starlight Bowl.
Also, it could not be denied that Cinevision was financially impacted by the City’s decisions to reject the hard rock concert proposals. So there was an injury and a causal connection to the government action. As such, standing was not at issue.
As to the argument that Cinevision should have been barred from bringing a lawsuit because they did not know what speech the artists would make (i.e., what songs they were going to play), the court noted that such a holding would run contrary to historical standard. It would also lead to absurd implications for media purveyors in all forms.
According to Open Jurist, Judge Reinhardt for the Ninth Circuit noted that “…it would be anomalous to require a promoter to know exactly what songs an entertainer will sing before any first amendment rights attach — just as it would be to require a bookseller to read all of the books he plans to sell or a theater owner to view all of the movies he intends to show.”
The case then turned to the substantive claim of content-based speech suppression and First Amendment rights violations. As to the charge that the City specifically targeted hard rock concert proposals for rejection, the council did not put up much of a fight against the claim. The sheer evidence with respect to the kinds of concerts that were approved versus the kinds of concerts that were rejected made it undeniable that there was a bias within the City council against the hard rock genre.
However, the City contended that the basis for their rejections was not merely a reflection of their taste in music. Instead, they argued that the decisions were borne out of a concern for public safety and avoiding negative community impacts. The City alleged that hard rock concerts and the kinds of crowds they attract often bring with them illegal drug use, rowdiness, and other criminal behavior.
Because the City government’s action was pretty obviously content-based, the strict scrutiny test applied. That meant that the City’s decisions must have been the least restrictive means of addressing a compelling government interest in order for it to be legally defensible.
However, interpretations of terms like “least restrictive means” and “compelling interest” might vary from one person to the next. But it’s reasonable to assume that public safety would qualify as a compelling government interest.
Also, we could humor the notion that the City did not have any other means of ameliorating those concerns. So the action of restricting who could perform might have seemed legitimate on its face.
However, the problem for the City came in the form of evidence – or, more accurately, lack of evidence – for the concerns themselves. It turns out that, in reviewing each concert proposal, the City council requested feedback from the City’s police department about historical trends in criminal activity and concerning behavior following in the wake of past concerts so as to better inform their decisions.
And for each of the “hard rock” concert proposals submitted by Cinevision, the police department replied that there had been no past issues or concerns whatsoever with the performers or the crowds. In fact, the police chief went so far as to unreservedly recommend approval of the proposals.
But of course, that isn’t what the City did. The council seemed to defy evidence that directly contradicted the purported rationale for their decisions.
Some council members went beyond the scope of criminal concerns and noted in official deliberations their concerns that hard rock concerts bring “black audiences” and “homosexual crowds.” And they openly opined that “that’s not what we want.”
They also noted objections to the political viewpoints of the hard rock artists and their followers. In fact, the Vice-Mayor noted that some of the artists had a record of saying “off-the-wall things.”
Aside from being nauseatingly bigoted and ignorant, these council member views obviously failed to cite any real legal concerns that would give rise to the presumption of a “compelling government interest.” Instead, they merely reinforced suspicions that the real impetus behind the City council’s concert proposal rejections was culture bias.
It became strikingly clear through their comments that the council members who rejected the proposals did so because of an opposition to hard rock music and hard rock culture. It was as if the Reverend Shaw from Footloose and Baby’s Dad from Dirty Dancing had a baby – and that baby was the Burbank City Council. The unfettered distaste for young people’s music and progressive ideas was visceral and palpable, so that distaste was the entire basis for the City’s policy toward concert proposals.
As a result, the courts at both the trial and appellate levels struck down the City’s actions as unconstitutional. Damages were awarded to Cinevision for the fallout of the performer rejections.
Additionally, one council member in particular, Jim Richman, was sued personally in the lawsuit. He was charged with being the primary propagandist and political whip behind the City’s actions.
Normally, elected representatives and other government officials enjoy “qualified immunity” when they act in their official capacities, according to the National Conference of State Legislatures. However, Richman’s clear bigotry toward the artists and their fans was so opaque in the evidentiary record that he was found to have acted in “bad faith” with respect to his duties. This bad faith nullified the immunization that would have otherwise protected him. Along with the City, Richman was found to be jointly and severally liable for damages owed to Cinevision.
Related link: Entertainment Industry Regulations and Park v. Deftones
Governments Can Regulate Freedom of Speech and Freedom of Expression, But the Standards Are High
The moral of the story in the Cinevision case is that governments absolutely have latitude to exercise regulation over freedom of speech and freedom of expression when that regulation is well-intended and aimed at protecting legitimate government interests. But depending on the specific circumstances, there are difficult tests that apply to the propriety of government actions, and a very high bar must be hurdled in order to justify content-based speech regulation. Governments and government officials must ensure that their actions to restrict freedom of expression are supported by sound and compelling evidence and that they are not merely reflective of subjective speech preferences.