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Music Festival Cancellation Illustrates Preemption’s Peril to Local Economies

I am not even a fan of Fall Out Boy, and yet I am distressed that Atlanta’s Midtown Music Festival, scheduled for September 17-18 in Piedmont Park, was cancelled this week by organizers because of a preemption issue. Well, that is not what Instagram account said, but it is what happened.

This time, it is about gun safety. In 2014, then-Governor Nathan Deal of Georgia signed the so-called Safe Carry Protection Act, which expanded where people could carry concealed firearms to include spaces like bars, parks, some churches, and the non-secure sections of airports. The law included revised Georgia Code Section 16-11-173, relating to preemption of local regulation and lawsuits, finding the subject matter to be of statewide concern and prohibiting local governments from enacting more restrictive rules. The new law also contained a punitive sanction, creating a cause of action against local officials for nominal money damages, and injunctive relief. Georgia has also, just this year, enacted a permitless carry law, SB 319.

Gun rights advocates went to work testing the boundaries of the 2014 law, including its application to private businesses holding leases. In a 2019 suit by gun rights advocate Philip Evans against the Atlanta Botanical Gardens, the trial court held that organizations with a long-term lease could prohibit firearms on their premises; for those of you who are enraptured by the distinction between a an estate for years (allowing the firearms restriction) and a usufruct (where the law is unsettled) under Georgia law, here is where you can learn more.

When Midtown Music’s organizers, which includes Live Nation, announced a gun ban for the 2022 Midtown Music Festival, the plaintiff in the Atlanta Botanical Gardens case wrote to the Atlanta Department of Law, demanding that the state preemption be enforced because the Festival is a short-term tenant of Piedmont Park. Lemons from lemonade in the concealed carry world.

Now the Festival is cancelled, an action that could cost Atlanta up to $50 million dollars, much of it in hotel and restaurant revenue, urgently needed as the City recovers economically from the pandemic. This is the latest in a string of examples where state preemption that prevents urban areas from enacting or enforcing laws suitable to their size, density, culture and risk factors has had an impact most gravely on those cities, but also on the states that rely on the tax income those cities generate.

The most sensible way to manage this, of course, would be to respect the home rule authorities of charter cities like Atlanta, which includes authorities both regarding safety (Art 1 Sec. 24) and prevention of nuisances (Art 1 Sec. 30). What is happening in Georgia violates the City of Atlanta’s fiscal authority, its local authority, and in a dismissive way, the presumption against state preemption, which is given only a single sentence in the multi-page 2014 gun possession law.

But since we are in lemonade season in America right now (in more than one way), let’s think about intentional ways that festivals, cultural events and conventions can walk their talk when it comes to the states that they invest in. That’s what happened in North Carolina in 2017 and is starting to happen in Florida in response to its sanctions against the Disney organization. Texas may gamble on being too big to suffer from business loss due to its civil rights policies, but in other states, action by corporations and organizations may soon have some bite. Competitive horizontal federalism may soon include a fight for the moral ground; it also creates some interesting questions about the trend of foot-voting to states with lower tax burdens and regulation but laws that are repugnant to many. At the least, concerts in states with better gun safety laws soon may be hosting the best music festivals.


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