The City Council refused to approve proposed concerts by Blue Oyster Cult, Jackson Browne, Roxy Music, Todd Rundgren, Patti Smith, and A1 Stewart. The City Council approved proposed concerts by Robert Palmer and Poco.

Wolf & Rissmiller Concerts was also a plaintiff in the original action. Prior to the time the litigation was instituted, Cinevision assigned the rights under its agreement with the City of Burbank to Wolf & Rissmiller. The district court granted a motion for a directed verdict against Wolf & Rissmiller because it was not a party to the original agreement between the City and Cinevision. That ruling is not on appeal. The complaint also included pendent state law contract claims. The district court severed those claims, which are now the subject of proceedings in the California courts. That ruling also is not on appeal.

In making its first amendment arguments, the City does not suggest that, by entering into a contract that allowed the City Council the "final and conclusive” decision about approving or disapproving the proposed concerts, Cinevision waived its first amendment rights. Nor does the City rely on any contention that it had a contractual right to reject the six concerts or that any such contractual right could override Cinevision's constitutional interest.

The City claims that the following jury instruction was in error: (emphasis added). The instructions also placed limitations on Cinevision’s first amendment rights: To the extent that the instructions were less favorable to the City than it desired, they were not in error. Accordingly, we need not decide whether the City objected with particularity to the proposed jury instruction as required by Fed.R.Civ.P. 51, or whether the objections were waived, see Harmsen v. Smith, 693 F.2d 932, 939 (9th Cir.1982). We recognize, however, that if any error in the instructions occurred, it is that they were not protective enough of Cinevision’s first amendment rights. See infra.

See, e.g., Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) (affixing a peace symbol to a flag); Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969) (marching); Tinker v. Des Moines School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (wearing armbands); Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963) (demonstrating); Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940) (labor picketing); Schneider v. State (Town of Irvington), 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 185 (1939) (distributing handbills).

See, e.g., Young v. American Mini-Theatres, 427 U.S. 50, 61, 96 S.Ct. 2440, 2447, 49 L.Ed.2d 310 (1976) (plurality opinion) (adult films); Winters v. New York, 333 U.S. 507, 510, 68 S.Ct. 665, 667, 92 L.Ed. 840 (1948) (magazine stories of "bloodshed” and "lust”); Tovar v. Billmeyer, 721 F.2d 1260, 1264 n. 4 (9th Cir.1983) (adult bookstore and theater).

See Reed v. Village of Shorewood, 704 F.2d 943, 950 (7th Cir.1983); Tacynec v. City of Philadelphia, 687 F.2d 793, 796 (3d Cir.1982), cert, denied, 459 U.S. 1172, 103 S.Ct. 819, 74 L.Ed.2d 1016 (1983); Goldstein v. Town of Nantucket, All F.Supp. 606, 608 (D.Mass.1979); see also Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557-58, 95 S.Ct. 1239, 1245-46, 43 L.Ed.2d 448 (1975) ("By its nature, theater usually is the acting out — -or singing out — of the written word, and frequently mixes speech with live action or conduct. But that is no reason to hold theater subject to a drastically different [first amendment] standard.”).

Narrower access rights attach to the third public forum category. This category consists of public property, such as a military base or jail, "which is not by tradition or designation a fo*570rum for public communication.” Perry Education Association, 460 U.S. at 46, 103 S.Ct. at 955. See, e.g., Greer v. Spock, 424 U.S. 828, 94 S.Ct. 1211, 47 L.Ed.2d 505 (1976) (military base); Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966) (county jail); United States v. Albertini, 710 F.2d 1410 (9th Cir.1983) (military base). For this category of public forum, “[i]n addition to time, place, and manner regulations, the state may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view.” Perry Education Association, 460 U.S. at 46, 103 S.Ct. at 955 (citation omitted).

Although it involved similar facts, the Supreme Court's decision in Southeastern Promotions does not address nor resolve the issues before us. In Southeastern Promotions, the rock musical "Hair" was treated as obscene by the municipal board and the courts. The Supreme Court did not consider the merits of the obscenity question but held that the City had not adopted a procedure affording the type of judicial review necessary to support a lawful prior restraint of expression. See Southeastern Promotions, 420 U.S. at 560, 95 S.Ct. at 1247 (reiterating the stringent procedural requirements for a valid prior restraint of obscenity set forth in Freedman v. Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 738, 13 L.Ed.2d 649 (1965)). Here, we are not faced with any claims that the proposed concerts would have been obscene in any way. In fact, the proposed concerts almost certainly did not fall into any category of unprotected expression. Whether or not procedural safeguards similar to those required in obscenity cases must be adopted whenever governmental entities propose to grant or withhold approval of performances to be given in public forums, is an interesting but heretofore unconsidered question. Neither party has argued or briefed the issue. Accordingly, we do not decide whether Cinevision’s claims could be disposed of on grounds similar to those utilized by the Supreme Court in Southeastern Promotions.

However, as we discuss infra, the content of expression may be a legitimate factor to consider when the City is seeking to promote, rather than to suppress, certain forms of expression.

See, e.g., Widmar v. Vincent, 454 U.S. 263, 267-70, 277, 102 S.Ct. 269, 273-74, 278, 70 L.Ed.2d 440 (1981); City of Madison Joint School District No. 8 v. Wisconsin Employment Relations Commission, 429 U.S. 167, 176, 97 S.Ct. 421, 426, 50 L.Ed.2d 376 (1976); Ermoznik v. City of Jacksonville, 422 U.S. 205, 209, 95 S.Ct. 2268, 2272, 45 L.Ed.2d 125 (1975). Mosley struck down a municipal ordinance that provided for differing types of treatment of protected speech on the basis of its content. The Court held that the ordinance violated the equal protection clause of the 14th amendment. See Stone, Fora Americana: Speech in Public Places, 1974 S.Ct.Rev. 233, 272-80 (discussing Mosley and equal protection challenges to selective exclusion from a public forum). The quoted language, however, applies to both the equal protection clause and the first amendment. Because we hold that the City violated Cinevision’s first amendment rights, we need not decide whether the City’s exclusion of "hard rock” music from the Starlight Bowl also violated the equal protection clause.

Although the breach of contract claims are not before us, see supra note 2, we recognize that the City Council appears not to have properly applied the standard for disapproving concerts that it placed in the agreement. At least, the jury apparently so found: it rendered its verdict in favor of plaintiffs after being instructed that the City had a right to reject the proposals if "there [were] a legitimate expectation that the [proposals] may cause a potential public nuisance or violation of state law or municipal ordinance.”

The City Council’s definition of "hard rock” music bears little resemblance to the definition accepted by listeners of modern music or by those involved in the music industry. We recognize, however, that "hard rock” is difficult to define. Even assuming that the Council’s definition coincided with the generally accepted definition, “hard rock” is not a narrowly drawn or clearly defined category that can withstand constitutional scrutiny. See infra p. 575.

We discuss infra the arbitrary factors on which the Council relied in rejecting the Jackson Browne concert, as well as other proposed events.

By reserving some dates in the contract with Cinevision for performances by the opera, symphony, and choral club, the City did attempt, properly, to ensure some diversity in the entertainment in the Starlight Bowl. See infra p. 575. However, the City Council’s disapproval of the proposed concerts was not based on a desire to limit the number of “hard rock" concerts so as to assure a reasonable mix of performances. In fact, the Council would have been precluded by its contract with Cinevision from disapproving concerts for that reason; the Council, naturally, does not contend that it breached the contract.

In Southeastern Promotions, the municipality did not act to promote any specialized form of "expression.” Rather than dedicating a forum to a particular form of expression or acting in a positive manner to promote first amendment values in any way, the City of Chatanooga L. Tribe, supra, § 12-21, at 690 n. 12 (citations omitted). Thus, the Supreme Court in Southeastern Promotions did not discuss the constitutionality of a municipality’s dedication of a public forum to the presentation of a particular form of expression.

One commentator has argued that: Karst, Public Enterprise and the Public Forum: A Comment on Southeastern Promotions, Ltd. v. Conrad, 37 Ohio St.L.J. 247, 259 (1976) (footnotes omitted). Although we agree with much of what Professor Karst says, we recognize that discretion unbridled by narrowly drawn standards would not satisfy the requirements of the first amendment. We are far from certain that governmental officials can or should be trusted with the judgment of what constitutes “high-quality concerts" or "good theater.”

See also Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974) (plurality opinion) (holding that city may exclude political advertisements on city owned buses); Wooley v. Maynard, 430 U.S. 705, 717, 97 S.Ct. 1428, 1437, 51 L.Ed.2d 752 (1977) (recognizing that state has legitimate interest in "seeking to communicate to others an official view as to proper appreciation of history, state pride, and individualism”).

Of course, the City may not exclude proposed entertainers from a generally open, all purpose public forum simply because there may be alternative forums where they could perform. See United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 1707, 75 L.Ed.2d 736 (1983); Southeastern Promotions, 420 U.S. at 556, 95 S.Ct. at 1245; Schneider v. State (Town of Irvington), 308 U.S. 147, 163, 60 S.Ct. 146, 151, 84 L.Ed. 155 (1939).

There is other evidence of anti-homosexual sentiment on the part of the City Council. In a letter to a local pastor in August 1979, the May- or of Burbank, a voting member of the City Council, wrote the following about homosexuals: Similarly, Councilman Richman stated in a letter to the same pastor that “having concerts at the Starlight Bowl ... will bring to Burbank the dopers and sexual misfits of Los Angeles into direct contact with the youths of Burbank ... I hope you will also ask your fellow ministers, priests, and rabbis to join with you in this morality fight.”

The jury held Richman jointly and severally liable with the City for compensatory damages and individually liable for punitive damages. Punitive, as well as compensatory, damages are available against individuals acting under color of state law in section 1983 actions. E.g., Gill v. Manuel, 488 F.2d 799, 801 (9th Cir.1973); see White v. Washington Pub. Power Supply Sys., 692 F.2d 1286, 1290 (9th Cir.1982); Bradshaw v. Zoological Soc’y, 569 F.2d 1066, 1068 (9th Cir. 1978). We recognize that one of the reasons that the award of punitive damages is permitted in cases like this is that such awards tend to deter similar conduct by others in the future. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 269-70, 101 S.Ct. 2748, 2760-61, 69 L.Ed.2d 616 (1981).

In so holding, we answered the question explicitly reserved by the Supreme Court in hake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 404 n. 26, 99 S.Ct. 1171, 1178 n. 26, 59 L.Ed.2d 401 (1979), which held that officials of a regional governmental body are absolutely immune from § 1983 damages claims when acting in a legislative capacity. Every other circuit addressing the question has also extended Lake Country Estates to provide absolute immunity to local legislators acting in a legislative capacity. See Aitchison v. Raffiani, 708 F.2d 96, 98-99 (3d Cir.1983); Reed v. Village of Shorewood, 704 F.2d 943, 952-53 (7th Cir. 1983); Espanola Way Corp. v. Meyerson, 690 F.2d 827, 829 (11th Cir.1982), cert, denied, 460 U.S. 1039, 103 S.Ct. 1431, 75 L.Ed.2d 791 (1983); Hernandez v. City of Lafayette, 643 F.2d 1188, 1198 (5th Cir.1981), cert, denied, 455 U.S. 907, 102 S.Ct. 1251, 71 L.Ed.2d 444 (1982); Bruce v. Riddle, 631 F.2d 272, 279 (4th Cir.1980); Gorman Towers, Inc. v. Bogoslavsky, 626 F.2d 607, 611-14 (8th Cir.1980).

In Morrison v. Jones, 607 F.2d at 1274, we held that on the record before us local legislators who approved the appropriation of government funds to transport a juvenile to Germany to be with his grandparents were only entitled to "the qualified immunity afforded to executive officers.” (citing Scheuer v. Rhodes, 416 U.S. 232, 247-48, 94 S.Ct. 1683, 1691-92, 40 L.Ed.2d 90 (1974)).

Wood v. Strickland also included a subjective test of bad faith: whether the official "took the action with the malicious intention to cause a deprivation of constitutional rights." 420 U.S. at 322, 95 S.Ct. at 1000. In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Supreme Court scrutinized the conduct of federal executive officials and rejected the "malicious intention” part of the Wood test. Harlow held "that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at 818, 95 S.Ct. at 819 (citations omitted). Although the issue was not before it, the Court strongly suggested that the revised test would also apply to state officials sued under § 1983. Id. at 818 n. 30, 95 S.Ct. at 819 n. 30. In Davis v. Scherer, — U.S.—, 104 S.Ct. 3012, 3020 n. 12, 82 L.Ed.2d 139 (1984), the Supreme Court held that the objective test enunciated in Harlow applies to the immunity of state officials. See Fujiwara v. Clark, 703 F.2d 357, 359 n. 3 (9th Cir.1983) (applying the narrower Harlow standard in scrutinizing the conduct of state employees in a § 1983 action). The Court in Harlow did not suggest whether the new test would apply to local officials. However, two Circuit Courts of Appeals have already done so. Barnett v. Hous. Auth. of Atlanta, 707 F.2d 1571, 1581-82 (11th Cir.1983); Saldana v. Garza, 684 F.2d 1159, 1162-65 & n. 16 (5th Cir.1982), cert, denied, 460 U.S. 1012, 103 S.Ct. 1253, 75 L.Ed.2d 481 (1983). On appeal, Richman does not challenge the jury verdict that he acted in bad faith. Accordingly, although there seems little reason to doubt that the narrower Harlow test applies to local legislators as well as to federal and state officials, we need not decide that question. We recognize that Richman’s conduct was probably in bad faith under both the Harlow test and the more expansive Wood test because his conduct violated "clearly established ... constitutional rights of which a reasonable person would have known,” Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. at 819, and because he apparently acted with a malicious intent to deprive Cinevision of those rights. See infra note 25.

A videotape of the council meetings presents substantial evidence that Richman acted in bad faith; for example, (1) Richman alleged that two of the proposed groups would have the negative consequence of attracting homosexuals to the community; (2) Richman claimed that Jackson Browne would attract "antinuclear demonstrators” and "dopers;” and (3) Richman moved to pass a resolution to disapprove all of the proposed concerts, including those whose police reports contained no negative comments, because of their “potential for creating a public nuisance.” Moreover, Councilman Richman also solicited church leaders in the community to oppose the rock concerts, and circulated a petition calling for an end to the rock concerts in the Starlight Bowl. In a letter to a constituent, Richman stated: “I shall continue to oppose the commercialization of our Starlight Bowl for the purpose of finding a home for the misfits of Los Angeles." *579Richman’s conduct prior to the 1979 season reveals other evidence of bad faith. For example, in a letter to the other members of the City Council concerning proposed entertainers for the 1977 season, Richman stated that Thus, Richman apparently sought to exclude black people as well as "hard rock” music, homosexuals, "dopers,” and "antinuclear demonstrators” from the Starlight Bowl. In 1978, the City Council, recognizing the extreme nature of Richman’s conduct, instructed the mayor to send out a letter that stated:

If we were to apply this test here, we would almost certainly conclude that Richman’s acts were not legislative ones. The City Council voted on each proposed group and each vote necessarily affected a specific entertainer. In no way did any of the votes resemble enactment of legislation that would be generally applicable to the community.

See Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 734, 100 S.Ct. 1967, 1975, 64 L.Ed.2d 641 (1980) (holding that the Virginia Supreme Court acted in a legislative capacity in promulgating a Code of Professional Responsibility regulating the conduct of lawyers and therefore is immune from suit); City of Eastlake v. Forest City Enters., 426 U.S. 668, 673-74, 96 S.Ct. 2358, 2362-63, 49 L.Ed.2d 132 (1976) (holding that zoning referendum is the exercise of legislative power by the people); Hernandez v. City of Lafayette, 643 F.2d 1188, 1193-94 (5th Cir.1981) (holding that veto of an ordinance by the mayor was a legislative act entitled to absolute immunity); see also Buckley v. Valeo, 424 U.S. 1, 121, 96 S.Ct. 612, 683, 46 L.Ed.2d 659 (1976) (per curiam) ("The President is a participant in the lawmaking process by virtue of his authority to veto bills enacted by Congress.”); La Abra Silver Mining Co. v. United States, 175 U.S. 423, 453, 20 S.Ct. 168, 178, 44 L.Ed. 223 (1899) (recognizing that “the Constitution ... authorizes] the President to perform certain functions of a limited number that are legislative in their general nature”).

In Chadha, the Supreme Court concluded that the challenged practice — a Congressional "veto" of an action taken by the Executive Branch — was unconstitutional because it did not follow the requisite procedures for enacting legislation set forth in article I of the Constitution. On that basis, the Court held that the vote of the House of Representatives, invalidating conduct of the Executive Branch, "was essentially legislative in purpose and effect." 103 S.Ct. at 2784; see also Green v. DeCamp, 612 F.2d 368, 371 (8th Cir.1980) ("[I]f the [state] committee exceeds legitimate legislative activity, there is no immunity for those acts which are not essential to the legislative process.” (citation omitted)).

Because we are not presented with the issue, we need not decide whether a local legislator's vote to enter into a contract with a private party would be a legislative or an executive act.

We recognize that the district court adopted Cinevision's proposed order for attorneys’ fees. Because we have emphasized that this is a disfavored practice, we must give the order "special scrutiny.” Cher v. Forum Int'l, Ltd.., 692 F.2d 634, 637 (9th Cir.1982) (citing Ninth Circuit cases).

Hon. William G. East, Senior United States District Judge for the District of Oregon, sitting by designation.