Memorandum and Order of Judge Roslynn R. Mauskopf, United States District Court of the Eastern District of New York declining to dismiss the Muchmore complaint against the City, and, among other findings, declined to find that social dancing was unprotected expressive conduct. p 31.
By not dismissing the complaint, the Court held over the City the possibility of ultimate decisions that the dancing restrictions in the Cabaret Law be struck down. For the same reasons, the restrictions against dancing in the Zoning Resolution are vulnerable to being struck down.
The Court, expanding upon the briefing my Muchmore in its motion, carefully reviewed the meaning of terms such as “dancing” as used in the Cabaret Law and whether the Law applies to performance dancing as well as patron dancing, since the Law provides no interpretation of “dancing.”
First Amendment Freedom of Expression
The Court first discussed whether the Law applied to “Dance Performance” at page 16, because Dance Performance would arguably be protected by the First Amendment.
Clearly, this language is broad, using only the term “dancing” throughout the statute to define the parameters of the conduct prohibited absent a license. It makes no distinction between dance performance and “social” or “recreational” dancing by patrons.
At page 29, the Court discussed the meaning of the word “dancing”:
Because the term “dancing” is not limited in the Cabaret Law, it arguably regulates a wide range of activities: not only purely performative dancing and Stanglin-type “recreational dancing,” but also many forms of participatory dancing that arguably fall somewhere in between, for example, folk dancing and other forms of ethnic or cultural dancing that arguably implicate protected expression. On the other hand, the Court imposed a significant burden upon Muchmore to prove its case as to social dancing.
At page 30, the Court discusses the many forms of dancing:
Dancing plays an important role in our society and in many others around the world. Dancing expresses joy and binds communities. It can be an intimate moment between a couple. Elam, 53 F. Supp. 2d at 859 n.7 (“dancing between adults often has a definite communicative element, such as expression directed to attract a mate in a bar or a discotheque”). It can capture a moment of celebration for a group bound together by a common interest, culture, or feeling. Dancers taking part in recreational folk dancing reflecting their culture convey a particularized message of cultural pride; a message that the environment and circumstances of the dancing can help make clear.
At page 33, the Court noted that the City
Certainly, the government has an interest and right under its police power to regulate certain conduct. See Salem Inn, Inc., 364 F. Supp. at 863. However, where a statue is directed at expressive conduct which affects First Amendment rights, the government must show that the regulation furthers an important or substantial governmental interest and that the interest is unrelated to the suppression of free expression. O’Brien, 391 U.S. at 376–77; Spence, 418 U.S. at 411 (stating that a court must “examine with particular care the interests advanced by [the government]” where “the activity occur[s] on private property, rather than in an environment over which the State by necessity must have certain supervisory powers unrelated to expression.”).
The City does not engage in a robust analysis of its legitimate interest in justifying the Cabaret Law’s restriction on dancing.
Because this case is before the Court on the parties’ motions for judgment on the pleadings, the parties have not engaged in the type of analysis necessary to construe the statute and address the legislature’s interests in regulating dancing. Nor have they adequately addressed whether, as a legal matter, social dancing in any form is imbued with sufficient expressive and communicative aspects to make it distinguishable from the “recreational dancing” involved in Stanglin. Similarly, they have not sufficiently developed the facts to demonstrate that the Cabaret Law’s impact on First Amendment freedoms is not greater than necessary to further the City’s substantial interests. p. 34.
The Zoning Law also does not define the word “dancing” and is therefor also subject to constitutional challenge.
The Court also found that the Law may be unconstitutionally vague because of the broad meaning of the word “dancing.”
Here, Muchmore’s has adequately pled that the term dancing in the Cabaret Law is unconstitutionally vague. First, a reasonable person might have difficulty distinguishing between dancing that would trigger the Cabaret Law and dancing or other conduct that would not. As discussed in connection with Muchmore’s overbreadth challenge, it is not obvious whether the Law covers dance performance, social dancing, or both, and a more fulsome analysis of the language and legislative history of the statute are necessary in order to determine whether the Law reaches constitutionally protected conduct.
Chilling Effect on Musical Expression:
In so doing, the Court finds plausible on its face Muchmore’s claim that licensing for social dancing effectively restrains establishments that serve food and drink from playing certain types of music. 556 U.S. at 678; Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009). It is plausible that playing certain types of music will cause people to dance and that to avoid having dancing on the premises, establishments will avoid playing these types of music.
Thus the Zoning Resolution is vulnerable to challenge on these same grounds. But, Muchmore did not challenge the Zoning Resolution, but only the Cabaret Law. But, apparently, the City was aware of the vulnerability of the Zoning Law and decided to repeal the Cabaret Law and settle with Muchmore, paying Muchmore’s legal fees. But, because the Zoning Resolution remained in effect, repeal of the Cabaret Law had minimal effect on relieving the burden on social patron dancing.
One problematic part of the Court’s decision is that the Court provided some credence to the equal protection claims made by Muchmore, that is, whether the Cabaret Law was motivated by and “invidious discriminatory purpose.”p. 39. The Court cited Vill. of Arlington Heights v. Metro.Hous. Dev. Corp., 429 U.S. 252, 265 (1977) that “[p]roof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.” p.39
Muchmore asserted in his complaint, and on a motion to dismiss a Court assumes that such assertions are true, that proof of the discriminatory intent is shown in part by the inclusion in the 1926 law of the restrictions on the number and type of music, grossly misciting the 1926 law which showed no such provision, and misciting Chiasson case (p.38) for having held that
According to Muchmore’s, “[i]t should be clear to this Court, as it was to the Court in Chiasson, that a law passed in 1926, at the peak of the Harlem Renaissance, targeting instruments used in jazz music, and justified by a desire to apply the ‘check-rein’ to ‘wild stranger[s]’ and ‘foolish native[s][,]’ is not motivated by a substantial governmental interest by an invidious discriminatory purpose.” (Pl.’s Br. at 20.)
Unfortunately, the Court failed to review the actual 1926 law to see that this was untrue, accepting Muchmore’s inaccurate assertions. p.3. The Court did note ” Thus, one key to this inquiry is the history behind the Cabaret Law, an analysis that is lacking in the parties’ briefing.” P. 39.Court Memorandum On Motions Muchmore