me Supre Court Accord: Rock Music Is Loud

Spccial to lhe New York Times

WASHINGTON, Feb. 27 - The only proposition on which everyone at the United States Supreme Court today appeared to agree was that rock music is loud music. "Is there any such thing as quiet rock music?" Justice Thurgood Marshall asked Leonard J. Koerner, New York City's chief assistant corporation counsel. "No," Mr, Koerner replied. But there was no agreementon what the constitution permits a city to do about loud rock music. The question before the Court - one of the more unusual First Amendment issuesto reach the Justices - was the constitutionality of a New York City noise-control

regulation requiring musical perform-l has the right to limit the sound level of erfat the Naumburg Bandshell in Cen-l concerts, the appeals court said, the tral Park to use a city-supplied soundl Constitution permits only the "least reI strictive means available." City consystem and soundtechnician. the "mix" of sounds that make Court of Appeals l l-1"1:l The United states presentation is too intrufor rhe Second ciicuit nui lui"'ci tno, | 1! lh:Stlittic sive' the appeals court said' lnl ."g"r",i"" vrolated tn""rs'l Supreme court accepted New free-expression rights. wriii" ,tt" .itvl-,Tl: " I York's appeal last October. In the hour'

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like I unfamiliar concepts the role of the I "soundmix" in a rock concert. I t"t.. Koernersaid the regulationdid I not threaten the performers' artistic I expressionbecausethe city-supplied I technician knew how to provide the I "mix" that eachbandwanted. technician not as imis | "So the sound I portant as the conductorof a symphoI ny?" Justice Anthony M. Kennedy


Continued on Page 86, Column 3

Loud Rock Music Finds JusticesUnanimous
ContinuedFrom Page Al asked the city's lawyer. "No, he's really a technician," Mr. Koerner replied. But William M. Kunstler, representing Rock Against Racism, an organization of musical groups that challenged the regulation, vigorously disagreed. The organization has staged an annual concert at the bandshell since 1979. "A conductor and the man that does the mix are very comparable," Mr. Kunstler said. He said New York City's effort to substitute its technician for a band's own was "as if the city said that we're going to put Georg Solti in there instead of Zubin Mehta because Solti plays ondonte and dolce and Mehta always plays loud."
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By contrast, Mr. Koerner, like Mr. Kunstler an experienced Supreme Court practitioner, made a low-key, ation. evensolemnpresenl Justice John Paul Stevens challenged him with a hypothetical question. "Supposea band's drummer or trumpet player is much too loud," Justice Stevens said. "Could the city say, 'We can't control the sound, we're going to get our own drummer who's just as good,exactly the same?' " Mr. Koerner said that would be a Adoptlng a Folksy Manner "tougher case" because it would put Mr. Kunstler, the well-known civil the city in the position of substituting rights lawyer, addressed the Court in a its "aesthetic judgment" for that of the folksy, almost familiar manner, and perlormers. some of the Justices respondedin kind. New York City's argument is that Justice Byron R. White asked him the First Amendment does not recuire how he reconciled his position with a it to chooscthe "least restrictive'i aprecent Supreme Court decision that up- proach to sound regulation as long as held a ban on sleeping in a park near the method chosenis reasonable. the White House. Pressing for Comparisons' "I don't agree" with that precedent, No member of the Court acknowlMr. Kunstler said. edgep ever having attended a rock con"I wouldn't think you would.,' Justice cert, but several Justices pressed the Whiteshot back with a slighrsmile. lawyers for comparisons between rock When Justice Antonin Scalia ob- bandsand symphonyorchestras. served at one point that "when I was a "ls the New York Philharmonic as young man occasionally I was at par- loud as a rock band?" JusticeMarshall ties that got a little loud," Mr. Kunsrler askedMr. Kunstler. leaned forward and interiected' ''ls Replying that the Philharmonic this a confession?" couid ;;,etquite loud "when the ketrle

drums get going," Mr. Kunstler began to describea concerthe had attended. "I'm sorry I asked," Justice Marshall said. The Court is expected to decide the case,Ward v. Rock Against Racism, by earty summer. In other action, the Court reiected a challengeto the Times Squareiedevelopment project. The court refused to hear arguments that traffic congestion created by office tower construction would prevent New York City from complying with Federal air-quality standards. The decision clears the way for the beginning of property condemnation proceedings, said Larry Josephs, a spokesmanfor the State-Urban'Development Corporation, which is sponsoring the project.

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It seems$tartlingthatthe U.S. Suprcme Court is weighingthe loudness o.f rcck concerts in Central Pbrk The justices themselves seerhed emused by the case when they heard oral arguments. Anton Scalia, a straight-arrow conservative, mentioned that as a young man he had attended "parties that got a little loud." Thurgood Marshall, a deepdyed liberal, wisecracked: "Is this a confession?" But the issue is serious. The plaintiff, a band ealled Rock dgainst Racism, claims New York City is violating its right of free speech. Any such charge deserves serious hearing. The "speech" in this case is music. But the courts recognized long ago that ideas can be expressed in more than words. The band plays annual eoneerts in Central Park - ueryLutdl!. The Parks Department issued several warnings, which were ignored. So it took over the volume dial. It ruled that its own teehnician must operate the sound mixer at band shell concerts. Doesn't RockAgainst Racism have the right to control its own sound? Is government using its power to intmde on free speech? Or is Parks merely setting reasonable .limits on the form qf the band's expression? The fact that two lower coufts went in opposite direetions shows ifs a close call. Still, ifs hard to believe the Suprcme Court will rule that the FirstAmendment includes the right to ampliff speech'to mindnumbing levels. Or in the colorful phrase of a Rock fuainst Racism engineer, to make listeners' "ears bleed." The court ought to consider the point made by Parks Commissioner Henry Stern: Yes. tle Constitution protects free speeeh. But it also protects citizens against cruel and unusual punishment.

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