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A higher-court decision in 2002, Laurel Casey v. Newport, set even greater limits on municipal regulation of public performances. The First Circuit Court of Appeals, inferior in authority only to the United States Supreme Court, determined that the no-amplification restrictions on music in the city of Newport, Rhode Island, had to be tailored in such a way that they did not substantially limit speech more than was necessary. Newport had to demonstrate not only a substantial governmental interest in restricting speech, but it also had to regulate performances in the most minimally intrusive manner possible.

Compared with the precedents established by these rulings, Boston’s municipal ordinances regulating street performance seem downright primitive. As one example, Boston Municipal Ordinance 16-2.2 states that "no person hawking or peddling, selling or exposing for sale any articles, shall cry his wares to the disturbance of the peace and comfort of the inhabitants of the city." Interpreted as written, the ordinance severely restricts the sale of music or artwork on city streets. Ordinance 16-19.2 outright bars street musicians from practicing their constitutionally protected right to amplify their music, and Ordinance 16-19.1 criminalizes walking, standing, or sitting on the grass on Boston Common — a law that can be enforced selectively against artists. Yet those draconian measures seem to conflict with Ordinance 16-12.24, which allows itinerant musicians licensed by the police commissioner to "use or cause to be used any musical or noise-making instrument."

For the most part, however, the Boston Police Department’s regulations are even more restrictive and legally bizarre. Consider section eight of Boston Police Rule 75, which provides that a "female licensed musician shall not play on a musical instrument in a street unless she is accompanied by an adult male licensed itinerant musician." The very presence of such a provision, even if it is not enforced, gives the entire licensing scheme an anachronistic flavor not likely to play well in a 21st-century federal court.

And if this regulation weren’t questionable enough, Police Rule 75 also includes numerous geographical restraints. Itinerant musicians who obtain a license from the Boston Police Department are given a map that prescribes where and when they may perform. In much of the city, including some of its most traveled areas, street performances may occur only between the hours of 6 and 9 p.m. Among the areas included in this time-restricted zone are such natural settings for performers as Atlantic Avenue, Kneeland Street, Washington Street, Tremont Street, Park Square, Columbus Avenue, and Boylston Street. Moreover, City Hall Plaza and Dock Square are completely off-limits, since the city doesn’t issue permits for those locations. (It boggles the imagination that an area like City Hall Plaza, charitably described as a bricked-over desert, would deliberately be made more barren by excluding street entertainment from its environs.) To ban musicians and street performance from such areas is the equivalent of banning New Year’s Eve festivities in Times Square.

BOSTON’S STREET-performance ordinances and regulations seem impossibly oppressive and irrational, but the upside is that in this area of the law, the worse the regulations, the more likely they will be overturned. And once that happens, a replacement regulatory scheme more friendly to street performers is not hard to construct. Few remember that Cambridge’s street-performance ordinance was enacted only in 1974. That legislation created the Cambridge Arts Council to regulate street performances and issue itinerant-musician licenses. While some in the Cambridge community protested the legislation when it was passed, it has hardly been ruinous to the city. If anything, the law has only improved the lives of Cambridge residents, fostering greater social interaction and meaningful artistic encounters.

Given the legal and cultural importance of public artistic expression, as well as the applicable judicial precedents, it is not difficult to predict that unless Boston cleans up its act voluntarily — and quickly — the city will undoubtedly lose the lawsuit. Furthermore, the CAA suit was randomly assigned to federal District Court judge Nancy Gertner, who, in her earlier career as one of the city’s foremost trial lawyers, litigated some of the most important free-speech, women’s-rights, and sex-discrimination cases in Massachusetts. (Disclosure: Judge Gertner was Harvey Silverglate’s law partner for 16 years.) Even the most authoritarian, male-chauvinist pig on the bench, however, would have to conclude that these ordinances are plainly unconstitutional. Although it seems ridiculous that citizens must resort to litigation to get the city to update its antiquated laws, nothing else has worked. Attorneys at TH&T have engaged in discussions with attorneys from the Boston Police Department, but they yielded no progress. As for why the city is so strongly resisting change, the most likely explanation is simple inertia. As Baird explains, governments are reluctant to change unless someone hauls them into court: "A lot of government is about crisis management, and unless you force them to change, they won’t." The only remaining question is how much taxpayers’ money will the city waste before it either caves in or loses at trial. Stay tuned.

Harvey A. Silverglate is a regular "Freedom Watch" contributor. He can be reached at has@harveysilverglate.com. Dan Poulson, his research assistant, can be reached at dan@harveysilverglate.com