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May 7, 1997

MARILYN MANSON, INC., et al., Plaintiffs,

The opinion of the court was delivered by: WOLIN

 WOLIN, District Judge

 Currently before the Court is an application to enjoin the New Jersey Sports Exhibition Authority ("NJSEA") from preventing the "OzzFest '97" concert, which includes performer "Marilyn Manson," from being held on June 15, 1997 at Giants Stadium. Marilyn Manson is a heavy metal band that the NJSEA has deemed objectionable. Marilyn Manson's right of passage to perform at Giants Stadium is now impeded by roadblocks created by the collision between well established constitutional and contractual principles.

 This Court ordered on April 29, 1997 that the NJSEA appear on May 6, 1997, to show cause why the NJSEA should not be preliminarily and thereafter permanently enjoined and restrained from: (1) prohibiting plaintiffs Marilyn Manson, Inc., Ardee Festivals N.J., Inc. ("Ardee"), and Delsener/Slater Enterprises, Ltd. ("Delsener/Slater") from presenting the OzzFest '97 concert performance including the band Marilyn Manson at Giants Stadium on June 15, 1997; (2) prohibiting or otherwise interfering with ticket sales for OzzFest '97 to be held at Giants Stadium on June 15, 1997; and (3) taking any action to repudiate or otherwise breach its agreement to lease Giants Stadium to plaintiffs on June 15, 1997. Plaintiffs ultimately seek (1) a judgment declaring that the NJSEA has violated plaintiffs' rights under the First, Fifth, and Fourteenth Amendments to the United States Constitution and the corresponding provisions of the New Jersey Constitution; (2) an order permanently enjoining the NJSEA from violating plaintiffs' Federal and State constitutional rights, (3) an award of damages, costs, and attorneys' fees under 42 U.S.C. §§ 1983 and 1988, and (4) a judgment on plaintiffs' claims for anticipatory breach of contract and promissory estoppel. The Court has considered the written submissions of the parties *fn1" and the oral arguments presented. For the reasons stated herein, the Court will grant plaintiffs' request for a preliminary injunction.


 The parties here dispute whether the plaintiffs have a right, through the Constitution or through contract, to perform their previously scheduled June 15, 1997 OzzFest '97 concert event at Giants Stadium. The Giants Stadium performance of OzzFest '97 would include a performance by the rock band Marilyn Manson.

 OzzFest '97 is a "rock-music and lifestyle festival" that will tour twenty-one cities over five weeks in late May and June 1997. The tour is to begin on May 24, 1997 in Washington, D.C. and to conclude on June 29, 1997 in San Bernardino, California. The tour encompasses approximately one dozen bands and many vendors. Marilyn Manson is scheduled to perform at many of the OzzFest '97 tour stops, including Giants Stadium.

 Plaintiff Marilyn Manson sells record albums nationally. Its sales statistics rank high on the Billboard charts. Indeed, in its January 23, 1997 issue, Rolling Stone Magazine named Marilyn Manson the best new artist. The band also has performed nationally on Music Television ("MTV"). Currently engaged in a live national concert tour, Marilyn Manson has performed without illegal incident on the part of the band members.

 Mitch Slater is the President of Ardee and Co-President and Co-Chief Executive Officer of Delsener/Slater. Howard J. Tytel is the Executive Vice President and General Counsel for S-F-X Broadcasting, Inc. (The parent company of Delsener/Slater and Ardee).

 The Giants Stadium is a public outdoor facility located in the Meadowlands Sports Complex, East Rutherford, New Jersey. Giants Stadium has a seating capacity of 77,716. Robert Castronovo is the Executive Vice President and General Manger of Giants Stadium. (Castronovo Aff. P 1). In consultation with Robert E. Mulcahy III, President and Chief Executive Officer of the NJSEA, and with the NJSEA Commissioners, Castronovo negotiates the events to be held at Giants Stadium.

 In late January or early February of 1997, PACE Touring Inc. ("PACE"), the national producer of OzzFest '97, and Creative Artists Agency ("CAA"), as agent for PACE, began discussions with the NJSEA regarding the use of Giants Stadium as a venue for OzzFest '97 in June of 1997. PACE and CAA chose Delsener/Slater to promote the event.

 Slater contacted Castronovo to discuss the staging of OzzFest in June of 1997 at Giants Stadium. (Castronovo Aff. P 9.) Castronovo discussed the request with Mulcahy, who initially rejected holding the concert at Giants Stadium "because of what he perceived to be safety problems, and because we did not know what acts would be appearing at the concert with Ozzy Osbourne." (Castronovo Aff. P 9.) Castronovo asserts that the promoters, after several conversations with Mulcahy, convinced Mulcahy to approve the concert.

 Castronovo and Mulcahy recount that the promoters had agreed to a condition that would allow the NJSEA to remove any acts that it deemed not to be in the best interests of the NJSEA. (Castronovo P 9; Mulcahy Aff. P 4.) Plaintiffs allow that on March 14, 1997, Robert Light, a talent agent employed by Creative Artists Agency -- representing Ozzy Osbourne and Ozzfest '97, wrote to Mulcahy advising him that he and the promoters "were prepared to listen" to any conditions that the Meadowlands Complex might reasonably require.

 Castronovo indicates that he had several conversations, which resulted in his sending Slater his letter of March 20, 1997, which proposed certain conditions for the OzzFest '97 performance. (Castronovo Aff. P 10.) The proposed conditions included: (1) the show would be limited to six hours and end no later than 9:00 p.m., (2) the capacity would be limited to 40,000, (3) the time between sets would be extremely limited and "if possible, Pantera and Marilyn Manson should be eliminated from the bill," (4) the second stage must be kept inside the Stadium or eliminated, (5) the concourse attractions should be within the perimeter fence and none should be on the concourse, (6) the NJSEA would provide fifty State Police and Delsener/Slater would have to hire extra T-Shirt security, and (7) rent would be $ 175,000 plus expenses. (Slater Decl., Ex. B.)

 Castronovo maintains that he requested that "if possible, [Marilyn Manson and Pantera] be removed from the concert because of what we might have perceived as problems with their performances and, in particular, reactions from fans." (Castronovo Aff. P 11.) According to Castronovo, it was his "expectation that if the conditions were accepted and agreed upon, the parties would enter into the form contract incorporating the special terms and conditions of [his] March 20th letter, as has been [NJSEA] practice in the past." (Id. P 10.)

 Plaintiffs allege that Slater called Castronovo on March 20, 1997, after receiving the letter, and agreed to the terms of the letter with the specific exception of Castronovo's request that Marilyn Manson not perform. (Pls. Mem. at 4.) Plaintiffs contend that Slater informed Castronovo that Marilyn Manson was integral to OzzFest '97 and that the headlining performers Ozzy Osbourne and Black Sabbath would appear only if Marilyn Manson was permitted to perform. (Id.) According to plaintiffs, Castronovo agreed that Marilyn Manson would perform in the event. (Id.)

  Slater understood from this conversation that he had reached a binding agreement with the NJSEA through his conversation with Castronovo *fn2" and that pursuant to industry custom and practice the agreement would be reduced to writing on or immediately prior to June 15, 1997. (Pls. Mem. at 4). According to Castronovo, in contrast, "contracts are always signed prior to the date of performance and, on many occasions, substantially before the date of the performance, as evidence by the contract for the Iglesias concert which was signed on March 14, 1997 for a June 6, 1997 concert." (Castronovo Aff. P 5.)

 Castronovo recalls that after March 21, he discussed with Slater the conditions in the March 20 letter, and specifically the seating arrangements. (Id. P 12.) Castronovo states that Slater told him that he would have to discuss the conditions with Light to determine which conditions were acceptable. Castronovo recalls no discussions concerning the inclusion of Marilyn Manson and Pantera in the program. (Id. P 13.)

 Castronovo confirms receiving on April 14, 1997 a copy of a proposed advertisement of OzzFest '97. (Id. P 13 (citing Slater Decl., Ex. C).) The proposed advertisement stated that Marilyn Manson would perform at the OzzFest '97 concert and that tickets for the event would go on sale at 9:00 a.m. on Saturday, April 19, 1997. (Am. Compl. P 27.) Castronovo remembers receiving the advertisement and that the Marilyn Manson and Pantera bands were listed in the program. (Castronovo Aff. P 13.). After Castronovo reviewed the ad and discussed some matters with a Delsener/Slater representative, Castronovo approved the advertisement. (Id. PP 13, 15.)

 The approved advertisement appeared in the Village Voice and Aquarian newspapers on Wednesday, April 16, 1997 and in the Bergen Record newspaper on April 18, 1997. (Am. Compl. P 27.) In addition, Delsener/Slater contracted for advertisements of the concert to be broadcast from April 16th to April 20th on radio stations in the New York City metropolitan area and on the national cable television network MTV. (Id.)

 According to Castronovo, on April 16, 1997, after he had heard of "additional problems with the Manson band in other venues concerning protest groups and antics that are performed on stage," he reviewed these matters with Mulcahy. (Castronovo Aff. P 14.) Castronovo claims that Mulcahy discussed the concert with the commissioners and on April 17, 1997 advised Castronovo to inform the promoters that the NJSEA did not want Marilyn Manson to be included in the program. (Id.) Castronovo relayed the information to Slater who objected to the removal of Marilyn Manson. (Id.)

 Castronovo explains that it is not uncommon for acts to be removed from a program after advertisements or even ticket sales. (Id. P 15.) According to Castronovo "acts are removed for various reasons and sometimes announcements are made as late as the day of the performance." (Id.)

 On April 18, 1997, the NJSEA issued a news release entitled "STATEMENT OF THE NEW JERSEY SPORTS AUTHORITY MANAGEMENT REGARDING MARILYN MANSON AND THE OZZFEST CONCERT." (Am. Compl. P 28.) The announcement indicated that Marilyn Manson would be prohibited from performing at Giants Stadium and canceled the OzzFest event due to the inclusion of Marilyn Manson: "the promoters have informed us that Marilyn Manson must remain in the show, therefore based upon our stated position we will not allow tickets to go on sale tomorrow." (Id.)

 On April 23, the NJSEA offered to Ardee a contract containing the specific limitations contained in Castronovo's letter of March 20, 1997. The contract was "a standard form contract which is used by the Authority to book events within its facilities." *fn3" (Castronovo Aff. P 7.) The contract included a clause affording the NJSEA the opportunity to omit any performer from the bill under certain circumstances:

8. Performance Approval
LICENSOR retains approval right of performance, exhibition, or entertainment to be offered under this Agreement and LICENSEE agrees that no such activity or part thereof shall be given or held if LICENSOR files written objection on the grounds of character offensive to public morals, failure to uphold event advertising claims or violation of event content restrictions agreed to by both parties at the time of completion of this agreement.

 (Slater Decl., Ex. E, P 8.) The contract also specifically excluded both Marilyn Manson ...

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