Nicolas Allyn

Anth. 3980

Inst. M. Riviere

November 18, 2006

Platinum Links Entertainment et. al.

V.

Atlantic City Surf Professional Baseball Club et. al.

            The case in question is a current example of prior restraint being used by a municipal police force without prior rulings by the judicial branch.  The facts of the case show that the police force convinced a third party, who had a contract with the Plaintiffs, that a planned rap concert must be canceled.  The complicated issues of the contract between the venue’s mangers and the promoters of the concert will be touched upon but the main issue is the analysis of prior restraint.  The police believed that the rap musicians and the content of their music would create an atmosphere prone to gang violence.  They based this theory off their prior assumptions of “gangsta rap” and a history of violence which surrounded the headliner of the concert.  An analysis of first amendment rights illustrates how the actions of the defending police force violated the rights of the Plaintiffs who promoted the concert.    

The case of Platinum Links Entertainment et. al. (Platinum Links) verse Atlantic City Surf Professional Baseball Club et. al. (A.C. Surf) and the City of Atlantic City et. al (Atlantic City) was filed in the New Jersey U.S. District Court after Summer Fest 2002 at Sandcastle Stadium was initially canceled by the stadium operators.  The stadium operators and managers of the A.C. Surf, Jeffery Rodman and Mario Perrucci, canceled the concert on August 19, 2002 after the Atlantic City Police Department (ACPD) voiced concerns that the rap concert, headlined by N.O.R.E., would attract gang violence.  The plaintiffs, Platinum Links, filed and were granted a temporary restringing order which allowed the concert to take place on the original date of August 25, 2002.  Unfortunately, the decision to cancel the concert had already been disseminated by the press and only 200 people attended the sold-out concert which the promoters estimated 7000 people would attend.[1]  The plaintiffs then filed suit against A.C. Surf for breach of contract and Atlantic City for violations of their constitutional rights. [2]

Breach of contract issue would have been moot if the press had not reported the initial cancellation, but as mentioned above, the attendance was lowered drastically.    The defendants argued that they could not be held liable for the breach because of the ACPD’s actions.   This defense was under the a doctrine of impracticability and frustration of purpose which says that a party is not liable for the termination of a contract if an event happens which makes carrying out that contract impossible.  Judge Freda L. Wolfson, who ruled on the case, determined that the managers of A.C. Surf were not covered by the doctrine of impracticability and had indeed been in breach of the contract.  The doctrine did not cover them because the concert was eventually held after the temporary restraining order had been granted.[3]

The Atlantic City Police Department’s recommendation to cancel Summer Fest 2002 was based on an initial investigation by detectives in the department.  The findings of the investigation were then forwarded to Deputy Chief Michael Erskine and Chief Snellbaker who are both named as defendants in the lawsuit. On August 16, 2002 the ACPD first met with the managers of the stadium and warned them of the possible violence that could ensue because of the concert.  At this time Platinum Links had not provided the proper security plan which was stipulated in the contract.  Then again on August 19, 2002 the ACPD and Rodman and Perrocci had a teleconference in which the recommendation to cancel the event was made by the police department. Afterward, Rodman and Perrocci announced to the Plaintiffs that the concert would be canceled. 

The Plaintiffs complaint against the ACPD’s officials and the City of Atlantic City claims that the investigation and subsequent recommendations that led to the cancellation amounted to a violation of their First, Fourth and Fourteenth Amendment rights to promote a concert.[4]  This bundle of rights protects one’s freedom of speech and to gather peacefully, freedom from unwarranted search and seizure and that states must follow due process before taking rights away from an individual.[5]  The violation of this bundle of rights by the ACPD is considered prior restraint.  Prior restraint is when the government takes steps to restrain the dissemination of printed or spoken work without consent from a judge.  In order to get consent from a judge the government must prove that the speech is unprotected by the constitution.   The four types of speech that are unprotected are; obscenity, fighting words, incitement and invasion of privacy.[6]

 Judge Wolfson writes, “Indeed, it is well-established that concert and theatrical promoters enjoy the protections of the First Amendment despite the commercial and for-profit nature of their actions.”[7]  The Plaintiff’s rights were protected even thought they were not performers because a wide range of speech is included in the First Amendment including commercial speech.   The promoters of a concert allow the public to have contact to live performances and the protected speech of the performers.[8]  The protected status of performances does not allow the government to impede the production without proving the content is unprotected speech or the decision to regulate is content neutral.

The actions of the ACPD constitute prior restraint because the actions were founded on their assumptions of the content of the concert.  The ACPD’s defense was that their investigation led them to conclude that this concert would instigate gang violence.  According to the opinion of Judge Wolfson, this conclusion was based on the officials assumptions of what constituted “gangsta rap” and N.O.R.E.’s history of violence.[9]   This invalidates the defense that the decision to regulate was content neutral, so content has to be unprotected speech for it to be regulated.  The only types of unprotected speech that would be applicable in this case would be fighting words or incitement.  These are the only applicable types because to the ACPD’s concerns of gang violence occurring because of the concert.

Judge Rainey writes in Davidson v. Time Warner and Tupac Amaru Shaku, “The ‘fighting words’ doctrine applies when an individual hurls epithets at another, causing the latter to retaliate against the speaker.”[10]  For the content of the concert to have what is considered unprotected fighting words, the provoking words must be directed at a party. The performances that were being promoted by Platinum Links did not contain such words, so it would be erroneous for the ACPD to argue that violence would ensue from insults made during the performances.

Also, according to Judge Rainey inciting speech must be; “(1)...directed or intended toward the goal of producing imminent lawless conduct and (2) was likely to produce such imminent illegal conduct.”[11]  The concert’s performances would have to create an atmosphere where the attendees felt that they should participate in violent illegal activities during or directly after the performance.  The lyrics of N.O.R.E.’s 2002 album God’s Favorite only tell of past criminal exploits and they do not try to instigate current violence.[12]  The ACPD’s only real case for the content of the concert to be considered inciting speech would be based on violence that had happened before, during or after a N.O.R.E. concert.  The police cited shootings at a Pennsauken, NJ concert, New York Cities Hot 97 studio, and his affiliation with the Bloods out of New York City.  The glaring problem with the ACPD’s argument that this performance could cause gang violence is the fact that no violence was reported during the time of the concert.[13]

The lack of violence stemming from the Summer Fest 2002 concert makes the actions taken by the Atlantic City Police Department completely unfounded. The performances did not contain either fighting words or words that would incite violent, illegal behavior.  The ACPD used a third party to create prior restraint against the implementation of the concert when they contacted the A.C. Surf to recommend that the concert be canceled.   The prior restraint violated Platinum Links constitutional right of commercial free speech. It also violates their socially valuable undertaking of promoting a concert that would peacefully gather a community together to enjoy a musical performance.  If police are allowed to preemptively disrupt the planning of a performance without the consent of a judicial official, society will be deprived of necessary controversial performances.