ACLU-Wisconsin Urges Racine to Drop Electronic Music Concert Citations

November 26, 2002

The ACLU-Wisconsin is insisting that the city of Racine drop hundreds of citations it issued to persons who attended a non-profit fundraiser on November 2, 2002. Out of more than 400 patrons, only three were arrested for the illegal sale or possession of drugs. But the Racine police went on to issue tickets for more than $900 to hundreds of persons who, they claimed, were patrons of a "disorderly house" under the Racine municipal code. According to the ACLU-Wisconsin, which sent a letter to city attorney's, Daniel Wright, on November 25, applying the Racine Municipal Code "disorderly house" ordinance to individuals whose only actions were peaceably assembling to hear electronic music violates the First Amendment.

The ACLU of Wisconsin's letter reads in part; "To violate this section of the Code, an individual must "knowingly" patronize a disorderly house - which is defined as a place "which is used for the purpose of unlawfully selling, serving, storing, keeping or giving away controlled substances." Racine Municipal Code § 66-346 (emphasis added). The purpose of this fundraiser, however, was not in any way related to drug activity. Rather, the event was held to raise funds for the Uptown Theater Group, Inc. to aid in its efforts to restore an historic landmark located in downtown Racine. Not only did advertisements for the event state that attendees would be subject to search and that drugs would not be permitted inside, the Uptown Theater Group even tried to hire members of the Racine Police Department to act as security during the concert, as they had previously done for several other events".

"Electronic music concerts provide a critical arena for artistic expression for the hired performers and audience members. The First Amendment stands as a clear barrier to any governmental effort to silence musical artists and to prevent their audience from participating in expressive association with them", stated Attorney Micabil Diaz, Legal Director for the ACLU of Wisconsin.

"We urge that the Racine City Attorney, to save the city the time and expense in prosecuting tickets that serve no purpose in any legitimate effort to curb drug abuse - tickets that because they were issued unconstitutionally - may even be counter productive", added Chris Ahmuty, Executive Director of the ACLU of Wisconsin.

A copy of the letter to Racine's City Attorney is attached.

November 25, 2002

Mr. Daniel P. Wright
City Attorney for the City of Racine
730 Washington Avenue
Racine, Wisconsin 53403

Dear Mr. Wright:

We have received many complaints regarding the blanket ticketing of hundreds of attendees of a non-profit fundraising event featuring electronic music on the night of November 2, 2002, at the Tradewinds Banquet Hall. The application of Racine Municipal Code §§ 66-346, 66-347 to individuals whose only actions were their innocent performance of electronic music or their peaceable assembly for the purpose of expressive association violates the First Amendment. In addition, the classification of this musical venue as a "disorderly house," where only a nominal amount of drug activity occurred, contravenes the fair notice requirement of the Due Process Clause of the Fourteenth Amendment.

To be found in violation of § 66-347, an individual must "knowingly" patronize a disorderly house. A disorderly house is defined as a place "which is used for the purpose of unlawfully selling, serving, storing, keeping or giving away controlled substances." Racine Municipal Code § 66-346 (emphasis added). The purpose of this event was in no way related to drug activity nor were any of the ticketed individuals accused of providing drugs, assisting those who provided drugs, or being involved with drugs in any way whatsoever. Rather, the event was held to raise funds for the non-profit organization, the Uptown Theater Group, Inc., and its efforts to restore a historic landmark located in downtown Racine. Not only did the advertisements for the event include notice that attendees would be subject to search and that drugs would not be permitted inside, the Uptown Theater Group also sought to hire members of the Racine Police Department to act as security during the concert, as they had previously done for several other events. Moreover, despite a massive police raid and the forcible seizure of hundreds of individuals inside the hall, only a small number of persons were arrested on drug-related charges.

Based on the reports we have received, we have a substantial foundation for believing that the City of Racine impermissibly restricted the attendees' rights of expression and association through electronic music. Electronic music concerts provide a critical arena for artistic expression for the hired performers and audience members. The First Amendment stands as a clear barrier to any governmental effort to silence musical artists and to prevent their audience from participating in expressive association with them. Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989); Young v. Am. Mini Theatres, 427 U.S. 50, 77 (1976) (Powell, J., concurring) (stating that central to the performer's right to speak, is that there be a "free flow from creator to audience of whatever message" the speaker seeks to convey). In addition, the First Amendment safeguards the rights of individuals to peaceably assemble and associate for expressive purposes without restriction by the government. Thomas v. Collins, 323 U.S. 516, 539-40 (1945). Penalizing the performers and attendees of the concert with a nearly one thousand dollar ticket in a manner that burdens their exercise of their rights of assembly, association and speech squarely contravenes the First Amendment.

Moreover, the application of this ordinance to these individuals violates due process. Due process requires that a statute "provide a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99 (1982). Where First Amendment concerns are implicated, as they are here, the requirement of clarity is most stringent. Id. at 499. Given that the ticketed attendees could not have foreseen that their presence at a musical concert with nominal drug activity that was not openly conducted violated the ordinance, we believe that the decision to ticket them violates the due process clause. Innocent bystanders cannot be transformed into patrons of a disorderly house by their mere presence in a room where drugs are found.

In the interest of resolving this matter quickly and avoiding a tremendous waste of public resources in pursuing these meritless actions, we urge your office to dismiss all charges under the "disorderly house" ordinance against the disc jockeys and attendees. Please respond to this letter by Friday, November 29, 2002, to let us know what actions you plan to take in order to resolve the serious allegations raised by this letter.

Sincerely,

Micabil Diaz-Martinez, Attorney at Law
Legal Director, American Civil Liberties Union of Wisconsin