Despite rulings, street performers may face restrictions

Saturday, February 14, 2009

Although the Supreme Court ruled in Barnes v. Glen Theatre, Inc. (1991) that live entertainment is speech protected by the First Amendment, street performers around the country sometimes find that local authorities don’t consider them entertainers.

Instead, local governments may place street musicians and other street performers in other categories that can be restricted, such as that of panhandlers. Because panhandling may be considered commercial speech, receiving less protection under the First Amendment as Central Hudson Gas and Elec. Corp. v. Public Service Comm. of N.Y. (1980) outlines, the distinction between entertainment and commercial speech is important.

Although street performers do sometimes receive donations from passersby, a toss of money into a hat does not automatically turn a performance into commercial speech. In Davenport v. City of Alexandria (1983), Judge Samuel Ervin for the 4th U.S. Circuit Court of Appeals wrote that commercial
speech “is a legal term of art referring to advertising, and that the street performer’s activity was unrelated to advertising.”

Recent challenges to street performers, however, have continued to invoke panhandling ordinances to restrict street performers.

Madeira Beach, Fla., is among the most recent locations to address the presence of street performers on city property. In a Jan. 19 Madeira Beach City Commission meeting, members discussed a proposed ordinance that would prohibit performances from individuals “not connected with specific businesses,” according to Tampa Bay Newspapers. The commission passed an ordinance banning
solicitation without specifically referring to street performances, but performers and city officials continued to debate the issue at subsequent commission meetings. Tampa Bay Newspapers reported Feb. 10 that individuals in favor of street performers attempted to address the commission’s concerns that the performers would compete with merchants.

“There will be no vending of any sort, only street artists,” entertainment promoter Mark Justice told the commission.

According to the Feb. 10 article, however, the commission will put the issue on hold until it studies the policies of similar towns that allow street performers.

Similar ordinances have been making headlines on the West Coast, as well.

According to, Santa Cruz’s city council passed new regulations Jan. 27 regarding street performers. Under the new ordinances, entertainers accepting donations become panhandlers, and are thus subject to restrictions on where they can perform.

In Spokane, Wash., street performers have faced solicitation ordinances. Rick Bocook, also known as Harpman Hatter, told the First Amendment Center Online that he had challenged city restrictions since January 2006, when he was told not to play at a Spokane Transit Authority plaza. The city dropped the matter after the American Civil Liberties Union got involved, but similar controversies in other parts of Spokane have arisen. In June 2008, police asked Bocook to stop playing music outside of a Macy’s department store.

“I was told by police that I had no license and was soliciting,” Bocook said.

When he told police that playing music in a public forum, in this case the sidewalk, was a First Amendment right, he said, they threatened him with a ticket.

In response, Bocook wrote a letter to the editor of Spokane’s The Spokesman-Review on June 22. In the letter he challenged Part A of Spokane Municipal Code 10.40.060 that says vendors must “refrain from using excessively noisy devices or methods to attract public attention to his wares or services
and from shouting or calling his wares or services in a loud or boisterous manner.”

“Should the city close down a musician for playing music? I do not solicit money; it is given to me willingly,” Bocook wrote.

Aided by the Center for Justice, a nonprofit legal advocacy group with civil rights as one chief focus, Bocook was able to persuade the Spokane City Council to revise policies regarding street performers in November 2008. According to the Center for Justice, the Council added a paragraph clarifying that by
receiving donations a street performer does not become an active solicitor:

“A person who engages in constitutionally protected expressive activities in the public right-of-way shall not be required to obtain a business license unless the person engages in business activities. Constitutionally protected expressive activities conducted in the public-right-of-way shall include, but is not limited to, street performers. For the purposes of this section, a street performer means an individual, including street musicians, who performs any form of artistic expression. The voluntary contribution of money by members of the public to the individual in association with the expressive activity shall not result in the requirement of obtaining a business license,” the code now

Solicitation restrictions are not the only ones that street performers such as Bocook face, however. In June 2008, police told Bocook he had violated a noise ordinance with his music.

Noise ordinances are typically more difficult for street performers to challenge. The Supreme Court has outlined a test by which free expression can be restricted in public. In Clark v. Community for Creative Non-Violence (1984), the Court wrote that speech in a public forum may be restricted as long as the regulations “are justified without reference to the content of the regulated speech, that they
are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.” Presented with a noise-ordinance challenge in 1997, the U.S. District Court for the Western District of Missouri ruled in Croman v. City
of Kansas City
that the ordinance was constitutional. Justice Joseph Stevens wrote, “The ordinance makes no reference to the content of the message or music being amplified.”

“The challenged ordinance in this case serves to reduce noise, a purpose which is unrelated to the content of the expression.” Stevens also writes in his opinion that the noise ordinance serves a government interest, and “The Supreme Court has on more than one occasion recognized that government possesses a significant interest in noise reduction.”

Some types of local permit requirements have also passed court tests for acceptable restrictions on time, place, and manner of street performers’ expression. The 9th U.S. Circuit Court of Appeals ruled in the Jan. 9, 2008, case Berger v. City of Seattle that a Seattle ordinance requiring performers to
obtain a permit was constitutional. In the majority opinion, Judge Diarmuid O’Scannlain wrote that the permit requirement does not “burden expressive activity based on ‘disagreement with the message’ of the performer. Contrary to Berger’s argument, a rule does not discriminate based on content simply because it restricts a certain ‘medium’ of communication.” O’Scannlain said the Supreme Court has accepted content-neutral permit requirements.

“A licensing statute lacks content neutrality if it burdens only certain messages or if it imposes a burden on all messages, but allows officials unchecked discretion to treat messages differently. The Supreme Court’s decisions in Cox v. New Hampshire (1941), Poulos v. New Hampshire (1953), and Thomas v. Chicago Park District, (2002), apply this principle,” O’Scannlain wrote.

Although panhandling restrictions on street performers have been challenged, and noise ordinances must be content neutral, uncertainty as to what is constitutional and what is not remains. This uncertainty can have the effect of preemptively silencing street performers. After encountering a man’s misperception of panhandling laws on the streets of Spokane, Center for Justice attorney Bonnie Beavers wrote in a Nov. 28, 2008, blog post, “This shows how public perception can effectively chill the exercise of one’s First Amendment rights.”

Courtney Holliday is a senior majoring in economics and public policy at Vanderbilt University in Nashville.






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