"Using the facts, and law provided in Chapter 13, Assignment 13 (Page 341) and prepare anoffice memorandum . Use only the facts and law that you are directed to use in the Assignment:

1: First Amendment to the U.S. Constitution, (Find the relevant parts online)

2. Atlantic Beach Casino, Inc., d/b/a the Windjammer (Pages 344-345)

Use the following format and headings. include the following:

OFFICE MEMORANDUM

To:

From:

Re:

Statement of Assignment:

Facts:

Issue(s):

Brief Answer:

Analysis:

Conclusion:

CHAPTER 13 OFFICE LEGAL MEMORANDUM: ANALYSIS TO CONCLUSION 341 ASSIGNMENT 13 To: [Your name] From: Supervising Attorney Re: Mad Dog Review v. Jonesville First Amendment-freedom of expression We represent Mad Dog Review, a local rap band. As you know, this is a controversial group. The lyrics of one of their songs, "Mad Dog City Council," describes our city council in explicit terms using "dirty" words and language generally considered obscene. Based upon the language in their songs, and specifically that in "Mad Dog City Council," the city council of Jonesville (a neighboring municipality) has banned the group from performing in their community. The Jonesville city council based their authority to enact the ban on Municipal Ordinance section 355-20. The ordinance provides: "The City Council, upon major- ity vote, may prohibit the public performance of any type of entertainment that does not comport with local standards of decency or acceptability." The ordinance does not define "local standards of decency or acceptability" or provide any standards or guidelines that the city council must follow. Mad Dog Review wants to challenge the authority of the Jonesville city council to ban their performance. Please prepare an office memorandum addressing the question of whether the municipal ordinance violates the group's right to freedom of expression. Rule of Law: First Amendment of the United States Constitution (U.S. Const. amend. I). Case Law: Assume that the only case law governing this question is Atlantic Beach Casino, Inc. v. Morenzoni, 749 F. Supp. 38 (D.R.I. 1990). The relevant portions of the case are presented at the end of this chapter.ATLANTIC BEACH CASINO, INC. d/b/a the Windjammer, et al., Plaintiffs, Amendment. Indeed, expression may "best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with V. conditions as they are, or even stirs people to anger." Terminiello Edward T. MARENZONI, et al., Defendants. v. Chicago, 337 U.S. 1, 4, 69 S. Ct. 894, 896, 893 L. Ed. 1131 Civ. A. No. 90-0471. (1949). The message and reputation of the rap music group 2 Live Crew evidently came to the attention of the Westerly Town United States District Court, D. Rhode Island. Sept. 28, 1990. Council, for they have taken steps toward possibly preventing the group from playing a scheduled concert. It is in this way that 749 F. Supp. 38 (D.R.I. 1990) 2 Live Crew became the subject of, though not a party to, the present litigation. OPINION AND ORDER On September 19, 1990, plaintiffs, who have contracted PETTINE, Senior District Judge. 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 In the last few years legislators and citizens have paid increasing. on September 21, 1990, concerning the revocation of plaintiffs' attention to the lyrical content of popular music. The interest is entertainment license; from revoking the plaintiffs' entertainment not entirely new, for "rulers have long known [music's] capacity license; from prohibiting the 2 Live Crew concert scheduled to appeal to the intellect and to the emotions and have censored for October 6, 1990; and from imposing any special require- musical compositions to serve the needs of the state." Ward v. Rock Against Racism, _ U.S. ments on plaintiffs relative to the October 6 presentation. On 109 S. Ct. 2746, 2753, 105 September 21, 1990, the parties and this Court agreed that the L. Ed. 2d 661 (1989). The controversy some groups have ignited . matter would be considered as an application for a preliminary is not, in itself, any reason to take such speech outside the First injunction and that the show cause hearing would be contin- ued until October 1, 1990, subject to and dependent upon this Court's ruling. Based on the September 21 conference and CHAPTER 13 OFFICE LEGAL MEMORANDUM: ANALYSIS TO CONCLUSION 345 my review of the parties' briefs, this Court has determined that merely states, " Any license granted under Section 17-84 and 17-88 the central issue in this case is plaintiffs' facial challenge to the may be revoked by the Town Council after public hearing for cause town of Westerly's licensing ordinances on First Amendment shown." As in Venuti, the Westerly ordinance is utterly devoid of grounds. Because I find, for the reasons set out below, that standards. See 521 F. Supp. at 1030-31 (striking down entertain- the ordinances as written are unconstitutional under the First ment license ordinance). It leaves the issuance and revocation of li- and Fourteenth Amendments, defendants are enjoined from censes to the unbridled discretion of the Town Council. Our cases conducting a show cause hearing and from revoking plaintiff's have long noted that "the danger of censorship and of abridgement entertainment license. I also enjoin the defendants from prohibit- of our precious First Amendment freedoms is too great where offi- ing the concert for failing to allege sufficient harm to overcome cials have unbridled discretion over a forum's use." Toward a Gayer plaintiffs' First Amendment rights. 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). III. INJUNCTION The defendants assert that they are guided by specific con- In order for plaintiffs to prevail in their request for a preliminary cerns for public safety, as outlined in their notice to plaintiffs, and injunction, they must meet the following standards: the plaintiff not by the message of 2 Live Crew's lyrics. When dealing with the must demonstrate a likelihood of success on the merits, immedia First Amendment, however, the law does not allow us to presume are and irreparable harm, that the injury outweighs any harm good intentions on the part of the reviewing body. Lakewood, 486 engendered by the grant of injuncrivellof and that the public U.S. at 770, 108 S. Ct. at 1243-44. The standards must be explica interest will not be adversely affected by such grant. LeBeau v. itly set out in the ordinance itself, a judicial construction or a well- Spirito, 703 F.2d 639, 642 (1st Cir. 1983). I shall address each of established practice. Id. Without standards there is a grave danger these standards in turn. that a licensing scheme "will serve only as a mask behind which the A. Likelihood of Success on the Merits government hides as it excludes speakers from the . . . forum solely because of what they intend to say." Irish Subcommittee, 646 F. Rather than allow 2 Live Crew to perform and then prosecute for Supp. at 357. Such exclusion is repugnant to the First Amendment. any illegal activity that could occur, the Town Council wishes to This Court recognizes that the Westerly Town Council review and decide in advance whether to allow the performance to has a valid interest in regulating entertainment establishments. It is go forward. This is a prior restraint. See Southeastern Promotions, well established that time, place and manner restrictions on expres- Lid. v. Conrad, 420 U.S. 546, 554-55, 95 S. Ct. 1239, 1244-45, sive activity are permissible, but even then the regulations must 43 L. Ed. 2d 448 (1975). "Any system of prior restraints of be "narrowly and precisely tailored to their legitimate objectives." expression comes to this Court bearing a heavy presumption Toward a Gayer Bicentennial, 427 F. Supp. at 638, see Shuttlesworth, against its constitutional validity." Bantam Books, Inc. v. Sullivan, 394 U.S. at 153, 89 S. Ct. at 940; Cox, 379 U.S. at 558, 85 S. Ct. at 372 U.S. 58, 70, 83 S. Ct. 631, 639, 9 L. Ed. 2d 584 (1963). 466. The Westerly licensing ordinances do not even approach the A licensing scheme involving such prior restraint survives constitu- necessary level of specificity constitutionally mandated. tional scrutiny only when the law contains "narrow, objective and Given the complete lack of standards in the ordinances definite standards to guide the licensing authority." Shuttlesworth and the long and clear line of precedent, plaintiffs' likelihood of v. Birmingham, 394 U.S. 147, 150-51, 89 S. Ct. 935, 938-39, 22 success is overwhelming. L. Ed. 2d 162 (1969), see Lakewood, 486 U.S. 760, Southeastern * * * * * Promotions, 420 U.S. at 553, 95 S. Cr. at 1243-44, Cox v. State of Louisiana, 379 U.S. 536, 557-58, 85 S. Ct. 453, 465-66, ORDER 13 L. Ed. 2d 471 (1965), Irish Subcommittee v. R.I. Heritage Because Westerly Code of Ordinances, Sections 17-84 and Commission, 646 F. Supp. 347, 359 (D.R.I. 1986). 17-87 are facially unconstitutional, because the plaintiffs have The Westerly Ordinance, see supra note 3, provides even met the other requirements for a preliminary injunction, and less guidance than the law struck down in Shuttlesworth. Id. 394 because defendants have failed to allege sufficient harm, IT IS U.S. at 149, 89 S. Cr. at 937-38 (permit could be denied if ORDERED that defendants are enjoined from conducting a demanded by the "public welfare, peace, safety, health, decency, show cause hearing, revoking plaintiffs' license pursuant to these good order, morals, or convenience"). For example, Section 17-87 ordinances or from otherwise prohibiting the scheduled concert