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.
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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.
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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.
Time and time again, these laws see initiation by communities of local businesses. Unfortunately, it’s usually easier to pick on a broke street artist than organize against the city council, and we can’t expect the owning class to understand that good buskers are a sign of neighborhood health. Nor can we expect them to understand that if you make room for good buskers, then street art ends up displacing a lot of panhandling, vandalism, and other street crime in a neighborhood — a principle that famed urban designer Jane Jacobs called having “eyes on the street.” The fact is that by the time you’ve attracted the attention of the authorities, you’ve already lost – and it’s very rare that any street performer with chops has the time or the money to fight a fine. In some places, the police can – and will – literally steal all of your stuff (which, according to one Edinburgh police officer, often gets auctioned off on Ebay).
So what’s the solution? Well, I successfully beat a throng of angry rent-a-cops by making my own “Busker’s Rights card” (freely available for download here) to show to police, both real and fake, who try to shut down public street shows. Disclaimer: I am not a lawyer. But that said, so far it’s had a pretty good success rate – private security guards can’t legally touch you, and real cops are usually happy to shut down a fake-cop power trip (since 99% of the time, that’s what it’s about). In the case it’s an actual police officer who’s telling you that you can’t busk, it’s about fifty-fifty that they’ll leave you alone if you assert your rights – livestreaming the entire encounter can help them behave. I’ve had success asserting my rights with a commanding officer when a rookie wouldn’t listen to my clarification of what the law actually is – beat cops often hate it when you know your rights, but commanding officers will often respect you for it because they’ve got better things to do than push around street performers.
Ultimately, the likelihood that you’ll get pushed around is inversely proportionate to your skill as an artist. If the cops are too busy enjoying themselves and you look like you know what you’re doing (i.e. costume, business cards), they’ll often decide you’re a boon instead of a threat. And sometimes it’s just easier to find a nicer place where you’re not going to attract too much attention from the fuzz… even when that place is “the next town over.”
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