Petition Urging Flint to Drop Electronic Music Concert Citations

March 25, 2005

Mrs. Karen E. McDonald
Chief Legal Officer for the City of Flint
1101 S. Saginaw Street
Flint, Michigan 48502


Dear Mrs. McDonald:

We have received many complaints regarding the blanket ticketing of over one hundred attendees of a performance event featuring electronic music on the morning of Sunday, March 20, 2005, at Club What's Next at 2511 W. Pasadena Ave. The application of Flint City Code 31-11(e) 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 31-11(e), an individual must "knowingly" patronize a disorderly house. A disorderly house is defined as a place "which controlled substances are delivered, used, sold or maintained." Flint City Code 31-11(e). The purpose of this event was in no way related to drug activity nor were the overwhelming majority 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 allow a group sharing a common interest in music to assemble and perform. Moreover, despite a massive police raid and the forcible seizure and cavity searching of over one hundred individuals inside the hall, only a small number of persons were jailed on drug-related charges.

Based on the reports we have received, we have a substantial foundation for believing that the City of Flint 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). The arrest of, and ticketing of, and requiring a court appearance with a possible penalty of ninety days in jail and a five hundred dollar fine of, the performers and attendees of the concert burdens their exercise of their rights of assembly, association and speech and 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 to let us know what actions you plan to take in order to resolve the serious allegations raised by this letter.