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Posts tagged: Constitution

Aug 19 2014



” busking licenses themselves are unconstitutional.In the USA, public performance is protected by the First Amendment


I count myself as a veteran street performer, though by no means am I among the oldest-school of us. Having performed on the streets of fourteen cities in five different countries, I feel like I have a fairly dialed show. I have a good grasp of public space, social dynamics, crowd control, and comic timing, and on a good day I can pull a month’s rent in my hat.

It also means that I have been chased around by a lot of police and private security. Like most hecklers, they usually fall back on the same lines – “you can’t vend here, it’s a safety issue, this public street is private property” – but what they don’t know is that shutting down a street show in the USA is illegal. Not only that, but busking licenses themselves are unconstitutional.

* * *

In the USA, public performance is protected by the First Amendment. When in public, you have as much right to sing a song called “The President Is Stupid” as you have to sing a song called “Give Me A Dollar.” Singing “Give Me A Dollar” with a hat on the ground does not make you a business or a vendor, even if someone puts in money; and whether that public space is publicly or privately owned has no bearing on whether you still have your First Amendment rights while there. As a matter of fact, it is a crime to shut down a street show under the color of law — i.e. to tell you that it’s not legal to do so under the claim of any kind of legal authority. Source: Title 18, USC, Section 242: Deprivation of Rights Under Color Of Law. All this has been established and re-established all over the country by a variety of courts, including the Supreme Court, on multiple instances.

Unfortunately for street artists and our audiences, no police officer knows this. And half the time, even if shutting down a street show is illegal, they’ll still make up some other reason to cite you (in the UK, they’ve been using a literalistic interpretation of a century-old vagrancy law). And when a city council decides they’re going to limit the time, place, and manner of free expression in their towns, it’s rare that the local population of buskers can afford to spend the time and money to fight these anti-busking laws in the court.

* * *

A handful of precedents go like this:

• In 1970, Allen Ginsberg challenges and beats a 40-year-old anti-busker law in New York City, which had been established for reasons of “safety” regarding conflicts over performance space.
• In 1979, Goldstein vs. Town of Nantucket was decided in favor of a busker who successfully argued that street performance isn’t vending.
• In 2005, a street magician won over $47,000 in damages from the City of Seattle after it argued that its private ownership of a central park allowed it to place limits on street performance.
• In 2007, a visual artist’s right to sell his art at his street shows was upheld by the Supreme Court, referring to two other decisions which noted that free speech doesn’t get limited just because the speaker is financially compensated.
• In 2010, a judge threw out Venice Beach’s permit/lottery system which required buskers to buy into a lottery for space.


Jul 31 2013

Finally some positive 1st Amendment Movement re Busking….

LINK: http://www.stltoday.com/news/local/crime-and-courts/federal-judge-puts-halt-to-rules-on-st-louis-street/article_76991f42-96fe-533a-b3b3-4c594e2b8d8a.html

Big News in US Busker Laws in St Louis at least. One down, many cities to go…Thank you to BUSK THE MOVIE for this info

ST. LOUIS • A federal district judge has cleared the way for performers to take their acts to the streets of St. Louis without having to audition first, pay for a license or be restricted to a certain part of the city.

Judge Catherine D. Perry on Tuesday granted a preliminary injunction sought by the American Civil Liberties Union of Eastern Missouri to prevent the enforcement of ordinances restricting the performers.

A lawsuit by the ACLU challenged the constitutionality of the city’s street performer ordinances, which require a permit to perform. The court also ordered both sides to try to resolve the case through mediation by Sept. 30. If they fail to do so, the judge will consider a permanent injunction at trial.

The decision affects street musicians, mimes, jugglers, dancers, magicians and anyone else who wants to perform.

“St. Louis’ busking ordinances are as unwise as they are unconstitutional,” Tony Rothert, ACLU legal director for Eastern Missouri, said in a statement. “Besides detracting from a creative, vibrant and diverse city, the challenged ordinances are constitutionally defective.

“Artistic expression at public places is protected by the First Amendment,” Rothert said.

Jeffrey Mittman, the chapter’s executive director, said the First Amendment protects the “marketplace of ideas — from standard political discourse, to the leafleting of unpopular speech, to the performance of a beautiful song.”

Mayor Francis Slay’s office had no immediate response.

The city has regulated street performers since 1997, but last year the permit fees increased from $25 to $100 dollars.

The ACLU had argued in the federal suit that St. Louis’ ordinances violate the First and 14th Amendments because they use vague terms that could suppress artistic expression.

City officials had argued the ordinances were not unconstitutional and said further that the regulations only affected people performing for money.

“The ordinance seeks to balance competing needs on busy streets,” city spokesman Maggie Crane said when the suit was filed in May.

In her order, Perry wrote, “I conclude (the city’s) interests in maintaining public order and convenience can be better served by measures less intrusive on First Amendment freedoms.”

The suit was filed on behalf of street musicians Nick Pence and Frederick Walker.

Alderman Phyllis Young, whose district includes downtown, sponsored legislation in 1997 to allow artists and musicians to perform in most of the city. Before that, the city prohibited street performers.

Margaret Gillerman is a reporter for the Post-Dispatch.