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CASE
ATLANTIC BEACH CASINO, INC.
d/b/a the Windjammer,
et al., Plaintiffs, v.
Edward T. MARENZONI,
et al., Defendants.
Civ. A. No. 90-0471.
United States District Court,
D. Rhode Island.
Sept. 28, 1990.
749 F. Supp. 38 (D.R.I. 1990)
OPINION AND ORDER

PETTINE, Senior District Judge.
In the last few years, legislators and citizens have paid increasing attention to the lyrical content of popular music. The interest is not entirely new, for “rulers have long known [music’s] capacity to appeal to the intellect and to the emotions and have censored musical compositions to serve the needs of the state.” Ward v.
Rock Against Racism, ____ U.S. ____, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989). The controversy some groups have ignited is not, in itself, any reason to take such speech outside the First Amendment.
Indeed, expression may “best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 96, 893 L.Ed. 1131 (1949). The message and reputation of the rap music group 2 Live Crew evidently came to the attention of the Westerly Town Council, for they have taken steps toward possibly preventing the group from playing a scheduled concert. It is in this way that 2 Live Crew became the subject of, though not a party to, the present litigation.

On September 19, 1990, plaintiffs, who have contracted to present the 2 Live Crew concert, moved for a temporary restraining order prohibiting the defendants, members of the Westerly Town Council,
from holding a show cause hearing on September 24, 1990, concerning the revocation of plaintiffs’ entertainment license; from revoking the plaintiffs’ entertainment license; from prohibiting the 2 Live Crew concert scheduled for October 6, 1990; and from imposing any special requirements on plaintiffs relative to the October 6 presentation. On September 21, 1990, the parties and this Court agreed that the matter would be considered as an application for a preliminary injunction and that the show cause hearing would be continued until October 1, 1990, subject to and dependent upon this Court’s ruling. Based on the September 21 conference and my review of the parties’ briefs, this Court has determined that the central issue in this case is plaintiffs’ facial challenge to the town of Westerly’s licensing ordinances on First Amendment grounds. Because I find, for the reasons set out below, that the ordinances as written are unconstitutional under the First and Fourteenth Amendments, defendants are enjoined from conducting a show cause hearing and from revoking plaintiff ’s entertainment license. I also enjoin the defendants from prohibiting the concert for failing to allege sufficient harm to overcome plaintiffs’ First Amendment rights.

III. INJUNCTIVE RELIEF

In order for plaintiffs to prevail in their request for a preliminary injunction, they must meet the following standards: the plaintiff must demonstrate a likelihood of success on the merits, immediate and irreparable harm, that the injury outweighs any harm engendered by the grant of injunctive relief and that the public interest will not be adversely affected by such grant. LeBeau v. Spirito, 703 F.2d 639, 642 (1st Cir. 1983). I shall address each of these standards in turn.

A. Likelihood of Success on the Merits Rather than allow 2 Live Crew to perform and then prosecute for any illegal activity that could occur, the Town Council wishes to review and decide in advance whether to allow the performance to go forward. This is a prior restraint. See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 554–55, 95 S.Ct. 1239, 1244–45, 43 L.Ed.2d 448 (1975).

“Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963). A licensing scheme involving such prior restraint survives constitutional scrutiny only when the law contains “narrow, objective and definite standards to guide the licensing authority.” Shuttlesworth v. Birmingham, 394 U.S. 147, 150–51, 89 S.Ct. 935, 938–39, 22 L.Ed.2d 162 (1969); see Lakewood, 486 U.S. 760, Southeastern Promotions, 420 U.S. at 553, 95 S.Ct. at 1243–44, Cox v. State of Louisiana, 379 U.S. 536, 557–58, 85 S.Ct. 453, 465–66, 13 L.Ed.2d 471 (1965), Irish Subcommittee v. R.I. Heritage Commission, 646 F.Supp. 347, 359 (D.R.I.1986).

The Westerly Ordinance, see supra note 3, provides even less guidance than the law struck down in Shuttlesworth. Id. 394 U.S. at 149, 89 S.Ct. at 937–38 (permit could be denied if demanded by the “public welfare, peace, safety, health, decency, good order, morals or convenience”). For example, Section 17–87 merely states, “Any license granted under Section 17–84 and 17–88 may be revoked by the Town Council after public hearing for cause shown.” As in Venuti, the Westerly ordinance is utterly devoid of standards. See 521 F.Supp. at 1030–31 (striking down entertainment license ordinance). It leaves the issuance and revocation of licenses to the unbridled discretion of the Town Council. Our cases have long noted that “the danger of censorship and of abridgement of our precious First Amendment freedoms is too great where officials have unbridled discretion over a forum’s use.” Toward a Gayer Bicentennial Committee v. Rhode Island Bicentennial Foundation, 417 F.Supp. 632, 641 (D.R.I.1976) (quoting Southeastern Promotions, 420 U.S. at 553, 95 S.Ct. at 1242–44).

The defendants assert that they are guided by specific concerns for public safety, as outlined in their notice to plaintiffs, and not by the message of 2 Live Crew’s lyrics. When dealing with the First Amendment, however, the law does not allow us to presume good intentions on the part of the reviewing body. Lakewood, 486 U.S. at 770, 108 S.Ct. at 1243–44. The standards must be explicitly set out in the ordinance itself, a judicial construction or a well-established practice. Id. Without standards there is a grave danger that a licensing scheme “will serve only as a mask behind which the government hides as it excludes speakers from the . . . forum solely because of what they intend to say.” Irish Subcommittee, 646 F.Supp. at 357. Such exclusion is repugnant to the First Amendment.

This Court recognizes that the Westerly Town Council has a valid interest in regulating entertainment establishments. It is well established that time, place and manner restrictions on expressive activity are permissible, but even then the regulations must be “narrowly and precisely tailored to their legitimate objectives.” Toward a Gayer Bicentennial, 427 F.Supp. at 638; see Shuttlesworth, 394 U.S. at 153, 89 S.Ct. at 940; Cox, 379 U.S. at 558, 85 S.Ct. at 466. The Westerly licensing ordinances do not even approach the necessary level of specificity constitutionally mandated. Given the complete lack of standards in the ordinances and the long and clear line of precedent, plaintiffs’ likelihood of success is overwhelming.

ORDER

Because Westerly Code of Ordinances, Sections 17-84 and 17-87 are facially unconstitutional, because the plaintiffs have met the other requirements for a preliminary injunction, and because defendants have failed to allege sufficient harm. IT IS ORDERED that defendants are enjoined from conducting a show cause hearing, revoking plaintiffs’ license pursuant to these ordinances or from otherwise prohibiting the scheduled concert.