SANTA ANA LIMITS NOISE AT STADIUM

In the wake of dozens of complaints from Santa Ana residents over noise and offensive language from a June 28 heavy metal concert at Santa Ana Stadium, city officials recently voted changes in the stadium’s rental policy to avoid such problems in the future.

The concisely worded revision to the policy, tentatively approved by the City Council last week, allows the city to immediately halt concerts if “volume exceeds the city’s noise standards” or “the performers use profanity.” In addition, promoters will be required to “provide the city with a method of identifying the musical groups and their leaders and a list of previous performances.”

City officials interviewed this week insist that the measures were taken primarily to ensure that concerts will not disturb area residents. But the concert’s promoter is worried that the new stipulations will be used to bar heavy metal groups from using the stadium, while some First Amendment specialists believe that the profanity exclusion violates the First Amendment.

“That doesn’t stand a prayer of holding up in court,” said Ron Talmo, a professor of law at Western State Law University in Fullerton and who as an attorney handled numerous First Amendment cases.

“The ‘profanity law’ has a basic problem,” Talmo said, “and that is that profanity is protected speech. So even if everyone agrees that (an expletive) is profane, it’s still protected. What kills me is that the city has got to know that, but they passed it anyway.

“It’s a cute little ordinance,” Talmo added. “But I’m a law professor, and if any of my students came up with something like that, I’d flunk them.”

Following the June 28 concert--a six-act show headlined by L.A.-based heavy metal band Poison that police stopped in progress because of some 70 noise complaints--promoter Steve Little said, “They told me that they didn’t want any more heavy metal. I think it (the new policy) is unconstitutional and that the city is being discriminatory.”

An American Civil Liberties Union official also fears that the policy might discriminate against controversial acts. “I’m a little bit curious about the provision requiring that groups be identified and that a prior history of where they have performed be listed,” said Randall Wick, president of the ACLU’s Orange County chapter. “That seems to be an invitation to blacklisting certain groups.

“It would be particularly troubling if they used the policy to regulate speech that was political that also contained profanity,” Wick said.

Specifics on how the policy will be implemented and enforced, which were not included in the action approved by the city council, are being drawn up by the city staff, Deputy City Manager Jan Perkins said. Those guidelines will not be ready for three or four weeks, she said.

City attorney Ed Cooper said the decision of what constitutes profane language would be under “the jurisdiction of the stadium manager, or whoever is involved in operating the stadium. As far as the profanity end of it, presumably the hearer of profanity will know it when he hears it.”

But Cooper added that in order to set guidelines that will hold up if challenged in court, he will recommend that the city follow state laws governing obscenity. California laws are patterned after the U.S. Supreme Court’s established definition of obscenity as material that, taken as a whole and applying contemporary standards, appeals predominantly to prurient interest and is “utterly without redeeming social value.”

He said that a list of performers and history of their performances will be required only “so the city will know who would be there and have some idea of what the concert is about. Some groups are known by their volume or for the way they use the English language. We want to know so we can pay attention and make sure they don’t violate the policy.”

Cooper maintains that censorship is not the policy’s aim. “I’m taking the position that if we are going to rent the stadium for concerts, we do not discriminate against anyone or deny one group over another. There are standards for usage of the stadium and the use of profanity. All groups can play (under) those standards. This will apply to everybody without discrimination.

“There will be no prior restraint on the people themselves or the type of music that is allowed. As long as performers meet the standards we set up, that we think are reasonable for the comfort of the neighborhood, anybody can apply and get a permit to play,” Cooper said.

In a similar set of circumstances, the City of Burbank last year lost a six-year legal battle over its bid to control which performers were allowed to appear at the city-controlled Starlight Amphitheatre. The U.S. Supreme Court upheld a lower court ruling that the city overstepped its bounds in rejecting certain rock acts on the basis that they had “the potential for creating a public nuisance.”

In that decision, a federal appeals court judge ruled that law officers could deal with any violations once they occurred. “That is the proper exercise of the police power,” the judge wrote. “Censorship is not.”

Cooper said the main thrust of the policy changes is to ensure that noise restrictions are followed, although he said sound levels were not measured during the Poison concert to determine whether volume surpassed the city’s noise limit of 50 decibels between 10 p.m. and 7 a.m.

“We got some complaints from people a mile away,” Cooper said. “That’s a very long distance. Those who were closer complained about the obscene language. But if the noise standard is followed, language won’t be a problem because the neighbors will not be able to hear.”

LIVE ACTION: James Taylor will be at the Pacific Amphitheatre on Oct. 7. Tickets go on sale Monday.