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Peabody
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http://www.metro.us/us/article/2009/05/0......ndex.xml

Mixed reviews to SEPTA's busker limits

CENTER CITY. While waiting for the early evening R6 train at Suburban Station, some riders listen to their iPods or other music devices. Joe Kovach prefers the toe-tapping rhythms of street musicians.

"Sometimes it's entertaining when you're waiting for a train, especially with delays," said Kovach, a Phoenixville resident and daily Regional Rail commuter, watching a performer sing and play the keyboard. "It gives you something to watch."

Complaints from riders and merchants, however, prompted a new SEPTA policy that goes into effect Aug. 3, restrictings performers to certain areas, while requiring them to have free permits. It is drawing mixed reviews from SEPTA passengers.

Kovach said he considers the crackdown on free entertainment unnecessary, but noted that it may make other passengers feel more comfortable.

"Sometimes you feel obligated to give them something," he said.

Brian Rose, a daily commuter who waits for the R6 train at the Juan Valdez Café in the station, said the volume of music and number of performers became down-right annoying, especially from those with amplifiers, which SEPTA has also outlawed.

"This the second time in like an hour that he had to be yelled at," Rose said, pointing to the keyboard player. "It's very loud, and just the mix of music when there's so many people that do it [is annoying]."

Peter Hansen, SEPTA's manager of office facilities, said he does not expect to have trouble enforcing the new policy.

"Like any new regulation, it’s going to take time for people to get used to it," he said. "It’s going to take us time to see what the reaction is.


SEPTA UNPLUGGED HELPS SOME, HURTS OTHERS
Dennis Appleby, a cashier at Juan Valdez Café in Suburban Station, has had days where the "noise" coming from street musicians in the concourse was so loud it was nearly impossible to conduct business.

"If I can't hear the customers and they can't hear me that annoys them and me because you don't want to be screaming over each other," said Appleby, adding that complained to SEPTA a few times nearly a year ago about the disturbances.

In his case, SEPTA's new policy restricting performers to four designated areas and requiring free permits beginning Aug. 3 could mean better business in the down economy.

But the same can't be said for Peter Pettit, 54, who has played his electronic keyboard in the station for almost six years in the afternoons. He said the crackdown is another way for SEPTA to harasses street musicians and regulate a tax-free industry.

"I used to get down here and make $80 to $100 on a good day," said Pettit, who occasionally works at a bike shop with his brother. "When it comes down to three hours, you won't make no more than $20 to $40...A lot of people not even gonna be interested in playing no three hours.
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tabman
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Wow. It's getting tough all over. Thanks for taking the time to post.

-=tabman
...Your professional woodworking and "tender" loving care in the products you make, make the wait worthwhile. Thanks for all you do...

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Chance
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It's getting tough alright, and not by accident. I've seen this slowly forming over the past 15 years, like a frog in a pot. buskers united could easily push this back to where it belongs. But it would require no more egos and backbiting and upsmanship -- as if!
The Great Zoobini
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While one city outlaws busking, the next is busy legalizing it...
Meet you in Busker Alley Smile
meyegr
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So these performers cannot control themselves and when society steps in to control they cry foul?? Pretty much everything in a society is regulated, otherwise it would be anarchy.
Chance
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The problem is that neither action is legal. Free Speech can neither be "allowed" nor "denied", it just "is", considered an inalienable right under the constitution. In a perfect world where all buskers understood and ACTED ON their rights, such "laws" would not be tolerated any more than a "law" that says it's illegal to have brown hair, or to wear white shoes on your birthday. To an educated observer, busking laws seem just as ridiculous, trust me.

But so long as ego prevails we'll never be able to stand united. We'll all sit around bragging about how great we are, how phat are last hat was, and how much "you" suck, until we're all good and boiled like that frog. I've seen these "legal" stepping stones being put in place for years, and not just in the U.S. It's global in nature. And as far as I can tell I'm the only one that's been screaming at the top of my lungs for united action.

Is anybody listening?

Posted: May 6, 2009 7:32am
Meyegr, you comment is as ignorant as can be. You need to study your rights. If a person -- ANY person, anywhere -- is acting out in public, don't you think there are appropriate laws already in place to handle such a contingency?

If your neighbor is playing their stereo too loud, the cops can write a ticket, right? If a guy on the subway acts out he can be ticketed or even arrested depending on the circumstances, right?

I've never said that a busker is free to do ANYTHING AT ALL on the street. But then again, neither can civil authority.

Excessive noise (coming from any person, no matter who they are) can be dealt with MINIMALLY, taking into consideration the appropriate useage of existing laws & bylaws. I've got no problem with that whatsoever.

And regarding your other comment, society is not supposed to be perfect, not in any sense of the word. And the United States is supposed to be the freest society of all. Not the most vanilla and mundane and socially acceptable, but the freest. The most permissive and experimental of all the nations.

None of these rights can be taken from us except at gunpoint. But they can be given away by citizens too lazy to care, too busy looking out for Number One. And this is exactly what is happening whether anyone here cares to admit to it or not!

Deal with it people! If 10 years from now no one is busking anywhere without risk of arrest, it's because you did nothing to stop it today!
meyegr
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Please expalin how my comment is 'ignorant' - thanks
Bob Sanders
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There are many elements in our society that cannot distinguish between "public" and "free". When it is compounded by those who add the right to charge for "free to the public" it really gets confusing.

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Chance
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"Everyone is ignorant, just on different subjects." = Will Rogers

The paragraphs after my comment explained very completely why I used the term 'ignorant'. Correctly used it is not an insult, although you seem to have taken in that way. The issue we are discussing is complicated enough without knee-jerk responses. Get back with me after you've boned up on the law and maybe we can learn something from each other.
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Chance,

Wow, maybe nobody is listening to you " screaming at the top of my lungs for united action." becuse you ARE screaming at everyone...
Chance
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If I am, at least I'm saying things worth hearing. Blaming the messenger is the lamest excuse of all for inaction.

I'm not in this for popularity, but at least I'm here trying to help. I have nothing to sell (unlike many here who have something new to sell almost by the month). I gain nothing from this except peace of mind. I love my country and I love busking, and I don't feel obligated to have to choose between the two.
Bill Palmer
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Reread the first amendment. Free Speech is not an "inalienable right," at leas as defined by the constitution. It is simply a right that Congress cannot infringe upon. The ninth and tenth amendments leave the right to infringe upon it to the state and to the people.

That's the constitution. It's not my opinion. It's a fact.
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JoeJoe
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Quote:
On 2009-05-09 00:08, Bill Palmer wrote:
Reread the first amendment. Free Speech is not an "inalienable right," at leas as defined by the constitution. It is simply a right that Congress cannot infringe upon. The ninth and tenth amendments leave the right to infringe upon it to the state and to the people.


I have no idea how you draw that conclusion; I believe it is self-evident that these rights are unalienable. Note that the Declaration of Independence does not limit unalienable rights to just life, liberty, and the pursuit of happiness - those are just rights "among" our unalienable rights.

The fact that the rights laid out in the Bill of Rights are unalienable is self-evident; they don't need to be argued or proven ... as William J. Brennan, Jr said:

"The Framers of the Bill of Rights did not purport to "create" rights. Rather, they designed the Bill of Rights to prohibit our Government from infringing rights and liberties presumed to be preexisting."



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Bill Palmer
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The Constitution prevents Congress from infringing on these rights. Here are the texts of the first, ninth and tenth amendments:

Just to refresh our memories, let's take a look at what the Constitution actually says:


Quote:
Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.



The First Amendment states that Congress shall make no law abridging the freedom of speech. However, if you look further down the bill of rights, you run into two other amendments that qualify this.

Quote:

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.



In this case, "the people" refers to all of the citizens of the United States and other people who live within its borders. If a group of "the people," such as a city, county or other group decides that there shall be no busking in their sovereign territory, they may have the right to limit it without respect to the first amendment, because they are NOT the congress of the United States. In fact, the next Amendment actually may support this.

Quote:


Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.



Unless there is an amendment or other federal law specifically prohibiting the states, cities or other groups from limiting speech within their territory, then the first amendment may not apply.

I'm not a constitutional law expert; however, it's important to remember exactly what we think we are defending. The anti-busking laws are written with the 10th amendment and possibly the 9th amendment in mind.

This is why cities and states can have licenses and permits for these activities.

It's also why different states have different laws for constitutionally protected rights, such as possession of firearms, etc.

The whole concept of our original Federal system was to limit the power that the Federal government had by leaving most of it to the States.

Modern interpretations are based upon case law, not the constitution, itself.

Otherwise, there would be no way that the doctrine of separation of church and state, a term which appears absolutely NOWHERE within the Constitution, would be given the broad interpretation which it is given today.

If a city decides that the presence of buskers constitutes a danger to its citizens, the buskers will have very little luck claiming a constitutional right to busk as freedom of speech.

BTW, I'm not posting this with any bias against buskers. I have done my share of busking in the past. I'm doing this as a matter of clarifying language.
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JoeJoe
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Quote:
On 2009-05-09 03:56, Bill Palmer wrote:
The Constitution prevents Congress from infringing on these rights.


No. Since the 20th century, The Supreme Court has ruled that the First Amendment applies to all levels of government including the judicial branch, the executive branch, as well as states and cities.

See http://en.wikipedia.org/wiki/Gitlow_v._New_York

"Gitlow v. New York's partial reversal of that precedent began a trend towards nearly complete reversal; the Supreme Court now holds that almost every provision of the Bill of Rights applies to both the federal government and the states."


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Bill Palmer
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Wikipedia is not a legal reference. However, your statement only proves what I was saying. That's not the constitution. It's case law.

In spite of that, let me explain where I am coming from. You don't have an inalienable right to busk. If you did, you could stand out in front of someone's house, set up your pitch at midnight and busk away. It would be stupid, because you would not have much of an audience. However, you WOULD be falling under what is called "disturbing the peace." As much as you feel that you have a first amendment right to busk, the right to life, liberty and the pursuit of happiness, as outlined in the Declaration of Independence, protects the right of people to sleep at a regular hour.

There are places that busking isn't permitted, because it impedes the flow of traffic -- such as when it blocks the free flow of passengers in a subway line.
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JoeJoe
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Oh please spare me the word games! The law is the law is the law ... and the law says we have a RIGHT to busk. Yes, that right can be regulated. Legal regulations are time, place, and manner in the least restrictive way.

And as a busker, you don't have the right to take away other people's rights either, like turning your amp so loud nobody can hear anything but you. If memory serves me correctly, the courts have ruled they can't impose a blanket ban on amps being as how some instruments require an amp to create unique sounds, like an electric guitar. But they are allowed to impose a ban on how loud those amps can be. But legally, this should be a noise ordinance that applys to everyone (not just buskers).

But they cannot deny you the right to be a busker. It is indeed an unalienable right.

-JoeJoe

Posted: May 9, 2009 5:10am
And the Wikipedia has a link to the Court's decision at findlaw.com if your not happy with their summery of it.

http://caselaw.lp.findlaw.com/scripts/ge......nvol=652

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Pokie-Poke
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On 2009-05-09 05:07, JoeJoe wrote:
Oh please spare me the word games! The law is the law is the law ... -JoeJoe


the law is nothing BUT word games. and if you are going to fight/change the law, rember that the lawers who will be agenst you play word games for a living.
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Trekdad
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On 2009-05-09 04:53, Bill Palmer wrote:
Wikipedia is not a legal reference. However, your statement only proves what I was saying. That's not the constitution. It's case law.

In spite of that, let me explain where I am coming from. You don't have an inalienable right to busk. If you did, you could stand out in front of someone's house, set up your pitch at midnight and busk away. It would be stupid, because you would not have much of an audience. However, you WOULD be falling under what is called "disturbing the peace." As much as you feel that you have a first amendment right to busk, the right to life, liberty and the pursuit of happiness, as outlined in the Declaration of Independence, protects the right of people to sleep at a regular hour.

There are places that busking isn't permitted, because it impedes the flow of traffic -- such as when it blocks the free flow of passengers in a subway line.


Bill -- You've hit upon the essence of why some content-neutral regulation is permitted by courts interpreting the Constitution, and why the constitutional right to freedom of expression is not absolute.

The content of expression CAN be regulated. Most people are familiar with Supreme Court Justice Oliver Wendell Holmes, Jr. who wrote that no one has the right to falsely yell "fire" in a crowded theater. The 1st Amendment doesn't protect defamation, invasion of privacy, copyright infringement, threats or harassment, to name just a few.

To level-set, the 1st Amendment protection of freedom of expression has been applied by the U.S. Supreme Court to state action (broadly defined) through the due process clause of the 14th amendment; so it's applicable to more than just Congress or the federal government.

As a general rule when evaluating specific state, local and municipal (and quasi-governmental, such as transit authorities) regulation of activities in public places, courts have established a general framework of analysis.

A-- is the regulation's purpose related to the content of the activity? If it is related to regulating content (and outright banning is generally thought to directly relate to content), then the regulation will fail on constitutional grounds, unless the above examples of non-protected speech are being regulated. A ban on specific types of performers or activities are generally considered unconstitutional.

B -- is the regulation broader than necessary? If the only permissible times to "busk" are in the wee morning hours, when the reason for the regulation is, say, to protect the free and safe flow of others using the public space, then the regulation would be found unconstitutionally overbroad. The key cases in this area involved zoning actions on adult businesses and bans on newspaper box placement.

C -- Does the regulation afford reasonable alternative means of communication? So busking can be prohibited within x feet of the transit tracks or in the entryways for public foot traffic but regulation should afford alternative spaces which don't have the effect of stifling the activity.

D -- If fees or permit requirements are imposed, are the fees closely and reasonably related to the governmental entity's costs associated with regulating the activity? Courts have found, for example, that fees which are prohibitive constitute a pre-text for a ban (i.e., charging $1 for inspecting temporary political signs with no cap, charging lobbysists $18k when the administrative costs to regulate are $4k)

Bottom line -- there several hundred years of jurisprudence applying and interpreting 1st amendment rights. And, finally, the patrol cop can be assumed to know the general rules, but has a great deal of discretion under most ordinances. The ACLU has some great advice on what to do when encountering a beat cop who wants you to stop "expressing yourself"

Finally, there are other constitutional protections which may apply to busking regulations -- being afforded equal protection of the law is just one more example.

I'm not a constitutional scholar along the lines of Arthur Miller, but I am an attorney who has advised businesses on free speech matters.

For those into on-the-cheap on-line legal research, please start with Cornell Law School's Legal Information Institute at http://www.law.cornell.edu/ -- much more credible than some of the Wikipedia entries I've seen.

A lively discussion of the law is always a good thing.

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