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David Achtenberg

Professor & Law Foundation Scholar

UMKC School of Law

Kansas City, MO 64110-2499


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City of Newport v.  Fact Concerts

435 U.S. 247 (1981)
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Newport’s Legal Significance

Newport’s Background Story

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 acted maliciously. 

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. 

While Newport 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. 

The Court 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. 

The Newport 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.

By 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 decision 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 known song.) 

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 council 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.