The Right To Rock ’N’ Rave

Simon Rust Lamb is the COO of Insomniac, presenter of some of the best-known EDM festivals in the world, such as The Electric Daisy Carnival, Electric Forest and the Wonderland family of events.

With more scrutiny put on such gatherings, Lamb discusses the First Amendment rights of presenters. Lamb was an attorney for Lionsgate Entertainment before opening his own firm, a music journalist for publications like Urb and editor-in-chief for BPM and Lotus magazines.

In the last few years, the live event community and the press have given considerable attention to raves and their place in today’s world. The term “rave” may be defined in several ways. As many using the term overlook this detail, here are some options: (1) an event featuring electronic music, or (2) an illegal underground party with electronic music and people under the influence of drugs, primarily Ecstasy. These two definitions cover AEG/Goldenvoice’s Sahara Tent at Coachella, Live Nation’s Identity Tour, Insomniac’s Electric Daisy Carnival, illegal warehouse parties and KCRW’s annual Halloween party. 

While many would like to pigeonhole all electronic music events into definition 2, which focuses on the misconception that these events are tied solely to drug use, the truth is that producers of modern-day electronic music festivals, or raves, implement the same safety preparations as any other major music concert or sports event. In reality, the top producers of electronic music festivals exceed security requirements because of the lack of understanding about how this genre has evolved from underground parties into multi-million-dollar productions in some of the world’s most famous venues. 

Regardless of the definition, what cannot be lost in this discussion are the First Amendment protections afforded to all forms of live musical expression and concert promoters, including electronic music events and promoters.  It is altogether too easy to overlook civil liberties when tragedies occur as people seek accountability and easy solutions. Our cherished First Amendment not only protects our freedom of speech, but it also entitles us to freedom of expression, with the goal of promoting creativity and ingenuity. While not everyone may understand why people express themselves in certain ways, the First Amendment ensures that such expression cannot be restrained by  subjective opinions of government officials.

The United States Supreme Court has reiterated time and again that the First Amendment protects the expression of music, including concerts and various types of music events. In Schad v. Borough of Mt. Ephraim (1981), the Supreme Court stated that “[e]ntertainment, as well as political and ideological speech, is protected; motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works, fall within the First Amendment guarantee.” Circuit courts have agreed that music is a protected form of expression. As the Seventh Circuit stated in Reed v. Village of Shorewood (1983), “[i]f the [City Council] passed an ordinance forbidding the playing of rock and roll music…they would be infringing a First Amendment right…even if the music had no political message—even if it had no words—and the defendants would have to produce a strong justification for thus repressing a form of ‘speech.’”

This First Amendment shield prevents government from banning or prohibiting a music event based on the type of music or because of the people the music is likely to attract. In Cinevision Corp. v. City of Burbank (1984), a promoter sued the City of Burbank for rejecting its concert proposals solely on the premise that Jackson Browne, Todd Rundgren, and Al Stewart played “hard rock” music and would attract narcotics users to the community. The City Council feared that the concerts would bring the “dopers and sexual misfits of Los Angeles into direct contact with the youths of Burbank.”

In ruling for the promoter, the Court held that the promoter enjoyed a First Amendment right to promote concerts and that right had been violated. Furthermore, the Court concluded that the First Amendment applies to all musical expression, both political and non-political. In support of its decision, the Court stressed that a promoter furthers a crucial First Amendment value by giving the public access to protected expression. Like a bookseller or theater owner, a concert promoter enjoys the best position to ensure public access to live musical entertainment. The public relies on concert promoters to make arrangements for musicians to perform.

No matter the form of expression, courts have traditionally maintained an extremely unfavorable view toward “prior restraint,” an attempt to censor speech before the expression takes place. In Southeastern Promotions, Ltd. v. Conrad (1975), the United States Supreme Court held that the denial of a theatrical production company’s application to present the musical “Hair” violated the First Amendment. Despite the fact that the City deemed the controversial musical to not be “in the best interest of the community” because of its nudity and obscenities, the Supreme Court found the denial of the application in anticipation of the show violating the law to be problematic.

As Justice William Douglas stated, “As soon as municipal officials are permitted to pick and choose, as they are in all existing socialist regimes, between those productions which are ‘clean and healthful and culturally uplifting’ in content and those which are not, the path is cleared for a regime of censorship under which full voice can be given only to those views which meet with the approval of the powers that be.”

The First Amendment safeguards both the types of music at events and the culture too. In McClure v. Ashcroft (2003), a plea agreement between the promoters and the federal government prohibited rave attendees at the State Palace Theater in New Orleans from using glowsticks, masks, and pacifiers. The District Court issued an injunction against these conditions after several rave performers sued, ruling that “the government could not ban such legal, expressive items simply because they are associated with illegal activities; and there was no evidence that the ban reduced ecstasy use.”

Despite the Fifth Circuit’s ultimate ruling that a third party (the performers) does not have standing when their constitutional rights are violated by a plea agreement, the Court recognized that the performers’ First Amendment rights were violated by the restrictions of the special condition because “[using] glowsticks and masks to dance…and [wearing] pacifiers for the purpose of expressing adherence to the rave culture” are both protected forms of expressive conduct.

Blaming music events such as raves for drug abuse is like blaming video games (which are also protected by the First Amendment) for murders – artistic expression does not trigger illegal activity. Rather, illegal activity is the result of individuals making poor choices, and that is why promoters have traditionally not been held liable for the independent actions of attendees. In Sakiyama v. AMF Bowling Centers, Inc. (2003), four teenagers attended an all-night rave at a roller skating rink and crashed into a tree on the way home, killing the driver and one passenger and severely injuring the other two passengers. In concluding that all-night rave parties are not inherently dangerous and the venue owner did not owe the plaintiffs a duty of care, the Superior Court of Los Angeles County explained that while drugs may have been anticipated, the venue “took more than reasonable steps to minimize the presence of drugs at the party, including by ejecting known drug dealers and requiring attendees to pass through two security check points.”

The Court found it “virtually impossible for a party organizer to rid all drugs from its facility” because “a party attendee easily could conceal such a small pill in order to bring it into the rave.” Furthermore, the Court noted that it would have been impossible for the venue to prevent the attendees from leaving the premises and driving whenever they chose to do so. “Countless bars and restaurants, for example, are open late and provide patrons with the opportunity to drink alcohol, become intoxicated, and then drive. Rock concerts are advertised to and attended by teenagers who thereafter drive home, sometimes under the influence of alcohol and/or drugs…Courts have refused to hold business owners and hosts in these situations liable for negligence.”

As case law has demonstrated over time, the First Amendment protects both live musical expression and the concert promoters who serve to facilitate such expression. It is important that we reinforce these ideals as the spotlight on electronic music continues to shine brighter than ever. Our Founding Fathers created the First Amendment to prevent the government from stifling citizens’ speech and choice to express themselves as they wish – so they could, essentially, dance like no one was watching.