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 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.