Justices Reject Burbank’s Appeal on Rock Concerts

The Supreme Court rejected an appeal Monday from Burbank city officials and let stand a ruling that the Constitution bars them from banning rock concerts, which they fear will attract drug users to a municipally owned outdoor arena.

The justices, in a brief order, left intact a decision by a federal appeals panel last year declaring that rock ‘n’ roll--like other music--is a “form of expression” protected by the First Amendment.

The U.S. 9th Circuit Court of Appeals had held that the city and former Councilman Jim Richman had violated the rights of a concert promoter in 1979 by refusing to approve six proposed performances on the basis of their content.

The panel had upheld a federal court jury verdict finding the city and Richman liable for $20,000 in damages and $119,000 in attorneys’ fees--along with a $5,000 punitive damage award against the councilman.

Richard Marston, senior assistant city attorney for Burbank, said he was “disappointed” that the Supreme Court felt the issues are “not significant enough to consider at this time.” He noted that the case involved a city-owned theater and the expression “by one councilman in particular of his thoughts.”

Marston added, “We think that kind of activity is privileged discussion. . . . He voted to disapprove (the concerts), and we think that’s within his constitutional rights.”

Richman contended that the Supreme Court’s refusal to hear the case was “a landmark decision” because it undermined a legislator’s ability to act in his official capacity without fear of being sued.

But attorney John Cochrane, of the Los Angeles law firm that represents the concert promoter (Cinevision), maintained that the case involved “the rather well-settled proposition that people who provide entertainment to the public are entitled to be free of arbitrary censorship.”

The case, he said, “is about people who make vindictive attacks on people they don’t like.”

In its petition to the Supreme Court (Burbank vs. Cinevision, 84-1389), the city argued that the appellate ruling unfairly prevented municipalities from assuring that their property was used for the general benefit of the community.

Might Attract ‘Dopers’

The appeals court, it said, erroneously extended to rock music promoters the same constitutional protection given bookstores and theaters as “clearinghouses for ideas.” Richman, the city added, was only exercising his duty as a councilman and should have been immune from damages.

Richman was named as a defendant because he allegedly said publicly that some of the groups might attract “dopers,” homosexuals and anti-nuclear demonstrators. Richman served on the council from 1977 to 1981, when he was defeated for reelection.

In 1975, the city had signed a contract with Cinevision Corp. calling for the promoter to provide live entertainment during the summer at the Starlight Bowl. The contract allowed the city to cancel any show that had the “potential for creating a public nuisance” or would violate state laws or city ordinances. A number of concerts were staged there, but official concern grew over complaints about drug and alcohol use by the audience.

Cinevision proposed concerts by eight artists in 1979, but several council members objected, voicing particular fears that “hard rock” performers would attract narcotics users. The council finally approved concerts by Robert Palmer and Poco, but refused to approve concerts by Blue Oyster Cult, Jackson Browne, Roxy Music, Todd Rundgren, Patti Smith and Al Stewart.

Unfairly Restricted Content

The promoter sued, contending that the city and Richman violated its constitutional rights by unfairly restricting the content of the proposed performances, and the subsequent jury verdict was upheld by the appeals court.

That court, in an opinion by Judge Stephen Reinhardt, said law officers could deal with any violations once they occurred. “That is a proper exercise of the police power,” Reinhardt wrote. “Censorship is not.”

The appeals court rejected the city’s claim that officials did not know the lyrics of the performers’ songs and thus were not trying to restrict the actual content of the proposed performances.

“However unsophisticated or ill-informed the members of the City Council may have been regarding current forms of popular music, it is difficult to believe that they would not have been aware of the differences between Jackson Browne and Donnie and Marie Osmond, or the differences between Pete Seeger and Pat Boone, or Joan Baez and Merle Haggard,” the court said.

Would Do It Again

“I would do it all over again,” Richman said Monday. “I had no moral recourse to do other than what I did, with the drug use prevalent at those concerts. The drug use impairs the fiber of the community, and I have some pretty strong feelings about those things.”

He said the events leading to the suit will be part of a book he is preparing with a ghost writer.

Still to be decided is the amount of profit Cinevision and the concert promotion firm of Wolf & Rissmiller, which was working with Cinevision in the presentation of certain acts, could have anticipated if the city had not killed the contract.

A lawsuit to determine whether the city illegally breached the contract will go to trial at the end of May in Los Angeles Superior Court. Times staff writer Allan Jalon in Los Angeles contributed to this article.