Unconstitutional Bill To Ban Raves In California

(By Andrew MacKie-Mason)

Change.org alerted me to a rather idiotic bill introduced by California Assemblyman Fiona Ma. (On a side note, Change.org's story doesn't link to the actual text of the bill and contains some factual errors.)

The crucial part of the bill reads as follows:

Any person who conducts a public event at night that includes prerecorded music and lasts more than three and one-half hours is guilty of a misdemeanor punishable by a fine of ten thousand dollars ($10,000) or twice the actual or estimated gross receipts for the event, whichever is greater.

Honestly, though, we shouldn't criticize Assemblyman Ma too much. She accomplished the impressive feat of fitting five constitutional violations into a single sentence. It takes a skilled legislator to manage that.

Freedom of Speech

Assemblyman Ma is trying to criminalize events based on the mere presence and duration of music, a form of protected speech. Since the music itself causes no harm (the ban is supposedly aimed at drug use and public safety), the ban would not pass the strict scrutiny required to restrict protected expression.

Freedom of Assembly

Assemblyman Ma managed to violate the First Amendment twice with a single law, even more evidence of her legislative prowess. The First Amendment protects the right of citizens to peaceably assemble. The ban is rhetorically premised on the belief that these assemblies will not remain peaceful, but in order for that rationale to work, an event can only be criminal if it is actually not peaceful. Since the criminal statute requires no showing that the event is unpeaceful, it is facially invalid.

Vagueness (Due Process) - Part One

The bill violates the Fourteenth Amendment protection of Due P

rocess by being unconstitutionally vague in its use of the word "night". Elsewhere, the bill defines "night" as the "period between sunset and sunrise", but that does not make it less vague, since "sunset" and "sunrise" are not legally precise terms. There are, in fact, three different sunsets and sunrises every day: civil, nautical, and astronomical.

Citizens are entitled to know exactly when they are violating the law. In some cases it may be clear that it is night time, but in cases where it's a close call the bill unconstitutionally vague.

Vagueness (Due Process) - Part Two

The bill is also unconstitutionally vague in its definition of punishment. It provides for fines of "twice the actual or estimated gross receipts for the event", but provides no mechanism to properly "estimate" gross receipts. A law cannot provide for arbitrary punishment, which is what an amorphous "estimate" or profits would amount to. (This would effectively allow as large fines as the prosecutor and judge desire.)

Over-broad (Due Process)

The bill is premised (as clear from the title: "Anti-Raves Act of 2011") on the supposed danger that "raves" pose to public safety. However, the bill bans far more than raves, mostly due to the vagueness of the term "prerecorded music". Taken literally, as we must take any undefined terminology, this means any music that is not performed live. (Note that there is no difference between "recorded music" and "prerecorded music".)

So, some examples of events that could be criminally prosecuted under this bill, were it ever to pass:

• An evening open house put on by someone attempting to sell their home, that includes any sort of music played off of a CD or other recorded format. (Better hide that Bach and Wagner!)
• A barbecue at the local park where someone leaves the radio on (and the radio station is playing normal recorded music, not live performances).
• A homeless person playing for donations on the street or subway at night.

I'm sure you can think of more.

So, let's applaud Assemblyman Ma for her incredibly impressive feat, and then make sure she's never elected again. Her approximate district is shown at right (she also represents some islands). If you live in the San Francisco area (as I know some readers do) or know people who do and are in her district, check the other box on the ballot next time you get the chance.