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Killjoy was here
Boston has long relied on onerous regulations to kick street performance to the curb. Now itinerant artists are fighting back in the courts.

WITH THE POSSIBLE exception of a Moroccan marketplace, few places are as vibrant and energetic as Harvard Square on a typical summer afternoon. Immediately upon exiting the Church Street T stop, startled visitors find that they’ve been pitched headfirst into a simmering crock pot of creative talent: tattooed art students crouch on the sidewalk selling their paintings, musicians and rappers with amplifiers test out their newest compositions, tap dancers perform on makeshift platforms, and aspiring actors improvise one-act plays. This aesthetic tumult may be Cambridge’s signature trait; for as long as anyone cares to remember, street performances have been an integral part of the square’s allure, lending the area its distinctive flavor and helping to attract the millions of visitors who do much to drive its local economy.

Standing in stark contrast to the hurly-burly in Cambridge is the relatively moribund scene one finds on the other side of the Charles River. Even in parts of Boston that seem like natural artists’ habitats, such as Newbury Street and Boston Common, creative public expression is not just scarce but actively discouraged — even illegal. Itinerant artists who venture into restricted neighborhoods and public parks run the risk of being harassed by irritated residents who’ve grown accustomed to their culturally sterile surroundings, or approached by police officers who warn them to pack up their things and move on. Those who persist in performing can be, and sometimes are, arrested.

As the US claims to combat the threat of domestic terrorism, in part by creating so-called free-speech zones at mass political demonstrations such as those held at the Democratic and Republican National Conventions, public free speech has suddenly become a socially explosive and legally contentious subject. But street musicians’ specific claim to First Amendment protection was settled long ago and therefore is not really a part of the current legal dispute. During recent decades, numerous court battles have explicitly determined what public-safety and other such interests justify the regulation of free speech in public spaces. And by anyone’s account, Boston’s ordinances don’t come anywhere close to meeting those requirements.

FRUSTRATED BY years of discrimination and repeated attempts to negotiate with the city, Community Arts Advocates (CAA), a Jamaica Plain–based, nonprofit coalition of artists, took the drastic step of pursuing a long-overdue federal civil-rights lawsuit to address the matter. Filed last month by the Boston law firm Testa, Hurwitz and Thibeault (disclosure: TH&T represents the Foundation for Individual Rights in Education, co-founded by Harvey Silverglate), the suit names, among others, the City of Boston, the Boston Police Department, and the Boston Parks and Recreation Department. CAA claims that current ordinances banning or severely restricting street performances are constitutionally invalid. CAA’s executive director, Stephen H. Baird, hopes the lawsuit will compel the city to implement constitutionally appropriate legislation that grants street performers more freedom regarding where and when they can perform. Given the confusing and discriminatory institutional labyrinth street artists must navigate, that goal will require a near-total legislative makeover. Yet the city almost certainly will not win this lawsuit.

The suit’s origins date to the summer of 2002, when Rosanna Lee Cohen, a folk musician known as Rosanna Lee, started performing on Newbury Street with a guitar and amplifier. Cohen had an itinerant-musician license from the Boston Police Department, but she was not aware of the permit’s severe geographical and amplification restrictions — and apparently, neither were some of the police. Over the course of that summer, Cohen was the subject of complaints from a handful of Newbury Street residents, but the responding police officers, unfamiliar with the laws governing street musicians, typically left when Cohen showed them her police-issued license. However, the residents began complaining to the captain of Police District Four, and the situation quickly deteriorated. By early September, the musician had been told to move her belongings and leave the area. Her license, Cohen learned, while seeming to allow her to perform, nonetheless prohibited her from performing where people would be likely to listen.

That’s when Cohen turned to Stephen Baird. Over the past 30 years, Baird, a long-time public-performance artist, has been involved in numerous challenges to street-performance bans in cities across the country. As an experiment, on June 18, Baird went to Boston Common and began playing an acoustic guitar. As described in the lawsuit, a Boston Parks Department ranger soon approached and told him that he had to obtain a permit to perform on park property. Baird returned to the Common the following day with an itinerant-musician license granted by the city, this time performing on a hammered dulcimer (a first-century precursor to the piano) before a small crowd. The same park ranger approached, but when Baird showed him his license, the ranger claimed that he needed another permit issued by the Parks Department; eventually, however, he conceded that the Parks Department doesn’t actually issue performance licenses. By then, the situation was beginning to seem like a Catch-22.

Despite Boston’s open hostility toward street artists, many of the important rulings concerning street performance and the First Amendment were handed down in New England. In Goldstein v. Nantucket (1979), a federal district court ruled that itinerant musicians enjoy First Amendment protection, even if they solicit donations. (Ruling otherwise would have meant that filmmakers, theaters, and newspapers, as well as street performers, couldn’t charge money for their services without forfeiting free-speech protections — a patently absurd idea.) In contradicting the claim that street performance was a form of "commercial speech" like commercial advertising, which enjoys only very limited First Amendment protection, the court instructed the town that such performance art was full-fledged protected speech and could be limited only to the extent that the government had a legitimate interest in doing so. Public safety, for example, might constitute such an interest, as would the comfort of residents trying to sleep at night. Typically, such restrictions, which have to be expressed in clear and narrow terms, may reasonably limit the time, place, and manner of expression, but they may not go further than that. Speech may be regulated, but it may not be regulated to death.

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Issue Date: September 3 - 9, 2004
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