City of Newport v. Fact
Concerts represented a significant victory for cities in
their efforts to restrict municipal § 1983
liability. The Court held that cities could not be held liable for
punitive damages even for clearly unconstitutional actions by
their policy making officials and even if those officials
In the years before Newport,
the Court had steadily expanded municipal
§ 1983 liability. Three years earlier, in
Monell v. Department of Social Services,
the Court had overruled prior case law to hold that cities were subject
to suit under the statute. Then, in Owen v. City of
Independence, the Court held that cities had no immunity from
damage awards even if their officials acted in good faith and without
violating clearly established rights.
represented a reversal of that trend, it was not entirely unexpected.
Owen was a hard-fought five-to-four decision, and its reasoning
depended, in part, on the argument that it was better to require a city
to bear the costs of its own unconstitutional policies rather than to
leave the innocent victim to bear those costs alone. Since
punitive damages are necessarily greater than the actual harm to the
plaintiff, it was harder to justify forcing the city to pay the victim
what could be seen as a windfall. In addition, the
Newport court suggested that there was no need to permit
punitive damages against cities since the deterrent purpose of
§ 1983 could be fully
accomplished by awarding them against the individual wrongdoers.
left open the possibility that a city's exemption from punitive
damages might be lost if the city's taxpayers (as opposed to
its officials) were directly responsible for an extreme
violation of individual rights. However, the Court considered that
possibility so remote that it declined to anticipate it.
Court's confidence that individual
punitive damages would serve as an adequate deterrent may have
been undermined by subsequent cases that sharply
restricted individual officials' liability. For example, in
Harlow v. Fitzgerald,
the Court held that qualified immunity would protect public officials
from damages, even if they acted maliciously or with ill will, so long as
they did not violate clearly established constitutional rights. In
Bogan v. Scott-Harris,
it held that city council members and other local legislators would be
absolutely immune for legislative actions regardless of malice, even if
those actions are directed at particular individuals.
1975, Jazz festivals in Newport,
Rhode Island had a long and
distinguished history having showcased jazz greats like Duke Ellington,
Miles Davis, Ella Fitzgerald and John Coltrane. However, the
to include rock groups
in the late sixties drew a less sedate audience, and the
1969 and 1971 festivals were marred by near riots. As a result, beginning in
1972, the “Newport Jazz Festival”
was moved out Newport.
In 1975, a different producer, Fact
Concerts Inc., sought to hold three concerts in a park in Newport.
After receiving a license from the city, Fact Concerts scheduled
performances by eight traditional jazz artists including Sarah Vaughan.
When Ms. Vaughan became unavailable, Fact Concerts replaced her with
Blood, Sweat and Tears, a Grammy Award winning band which mixed various
genres to create a sound that some thought of as rock, some considered
jazz, and some called “jazz-rock.”
(Click on the album cover above to listen to their best
BS&T had been one of the groups that
had performed during the boisterous 1969 festival; and Newport's
mayor and city council quickly took various steps to prevent the Fact
Concerts from featuring the band in the 1975 concerts. First, the council
voted to cancel Fact Concert's license unless the group was replaced.
Then the city changed its position and agreed that BS&T could perform
but only if it promised not to play rock music. Then, the City
cancelled the entire contract on pretextual grounds and offered Fact
Concerts a new contract that specifically excluded BS&T.
Finally, the mayor simply announced that the concerts were
cancelled, an announcement that was widely publicized that evening—the
night before the concert was to open.
The next morning, Fact Concerts obtained
a state court injunction against the city. Although the concert
proceeded, ticket sales were drastically suppressed; and Fact Concerts
lost more than $70,000.
Fact Concerts then sued the city, the
mayor, and the
members. The jury awarded Fact Concerts compensatory
damages in the full amount of its loss. Based on evidence that
indicated that the mayor and council knew that their actions were
unconstitutional, the jury also awarded substantial punitive damages
against each individual defendants and against the city itself.
However, the Supreme Court dealt solely with the award of punitive
damages against the city. As discussed above, it held that
a city could never be liable for punitive damages under § 1983.