Celebrating self-expression as a basic human right essential for the
healthy growth of youth, individuals and communities
COMMUNITY ARTS ADVOCATES, INC.
Stephen H. Baird, Founder and Executive Director
PO Box 300112, Jamaica Plain, MA 02130-0030
Web site: http://www.communityartsadvocates.org
The History and Cultural Impact
of Street Performing in America
© Stephen Baird 2007
The legal battle in Provincetown has continued for many, many years. In November 2006 they began to require performers to be requlated by a very poorly written noise ordinance that is blatently over broad and publically admittedly to be selectively enforced. I spent several days in Privinctown measuring sound levels. Businesses, air conditioners, exhaust fans, cars, trucks, motor cycles, trolley bell, night club and art gallery music and "a flock of sea gulls" all could be heard over 50 feet away. Even the town's own street sweeper could be heard 5-6 blocks and over 300-600 feet away. However, it seems street performers are the only folks who receive citations and fines. Much of this overt discrimitory enforcement is instigated by a small number of merchants who are trying to control the area around the town hall as a private mall.
Attorney Marc LaCasse, Esq., The McCormack Firm, One International Place, Boston, MA 02110 Tel. (617) 951-2929 www.mccormackfirm.com was in Provincetown and happened to witness the police stopping a street performance of a friend, Victor Sandman, over Memorial Day Weekend. Marcia Mello, a Provincetown blues guitar player and singer, was also stopped during the same time period. She has been one of the street artists subjected to the discrimitory enforcement of the noise ordinance over the past few years.
Attorney David E. Cole, Foley Hoag, LLP, Seaport World Trade Center West, 155 Seaport Blvd., Boston, MA 02110-2600 Tel 617-832-3005 www.foleyhoag.com helped stop the enactment of another set of over broad reguations in Septmeber 2005. The 2004 issues are outlined below.
I expect this issue will not go away until the town and the merchants are confronted in court and pay damages. Future updates will be posted. -- SB July 2007
(Click on images to see larger verisons)
Clown, mime and spoken word artist Ada Hann has performed in Provincetown since 1991. In August 2004, she has received two tickets and threats of arrest by the Police Chief. The Provincetown Street Performers by-laws are similar to the Cambridge Street Performance Ordinance, but has several additional severe restrictions that curtails and stops performances. The two most devastating restrictions are the ban of performances from the Town Hall Park from 9 AM-5 PM on week days. The Town Hall Park is the most important historic First Amendment area in the town. A reason given for prohibiting street performers is the availability of other public areas. The Following US Supreme Court statement has been frequently quoted in numerous lower court decisions:"One is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place."Schneider v State 308 US l47, l63 (l939).
The by-laws also bans the sale of street artists art work and music recordings. Recent court decisions give protection for the rights of artists to sell their art work and creations. Can Provincetown ban the public distribution of the Bible when it is published on a CD?
Over broad and vague regulations often lead to selective enforcement. Ada Hann received a ticket for performing 100 feet away from the town hall in the same location other artists are allowed to perform. A second ticket was issued for blocking the sidewalk, an often abused discretionary power used by police to harass people they do not like. Both tickets were issued without any attempt to abide by the 9-4-7 section of the Street Performance By-Laws written to protect artists from arbitrary arrest or fines for attracting a crowd. The First Amendment is superfluous if there is not a crowd."There is a First Amendment right to peacefully assemble to listen to speakers of one's choice, which may not be impaired by state legislation any more than the right of speaker may be impaired."Snyder v Board of Trustees of University of Illinois 286 F. Supp. 927, 928, (ND Ill. l968).
"'The Supreme Court has recognized that hearers and readers have rights under the First Amendment. Lamont v Postmaster General 38l US 30l 85 S. Ct. l493 l4 L. Ed. 2d 398 (l965). What is implicit in the majority opinion is made explicit in the concurring opinion of Justices Brennan and Goldberg: [T]he addressees assert First Amendment claims in their own right: they contend that the Government is powerless to interfere with the delivery of the material because the First Amendment necessarily protects the right to receive it."Brooks v Auburn University 296 F. Supp. l88, l92 (MD Ala. l969).
"The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers."Lamont v. Postmaster General 381 US 301, 308 (1965) (Brennan, J., concurring)
(Click on images to see larger verisons)
There are people walking in the street of Provincetown all the time. Crowds waiting for tables at the Lobster Pot and other area restaurants often block the sidewalks. I suspect the Provincetown Banner and Cape Cod Times could find archived photographs of the majority of Provincetown public officials walking in the streets. Provincetown should consider banning cars during the summer season and ticketing people for jay walking to mitigate the public safety concerns.
The courts have repeatedly said public officials can not ban leafleting because people littered the unwanted flyers. The city was free to arrest the individuals who littered. This is an analogous situation. Provincetown can not stop the First Amendment activity of the street performers. The town is free to ticket the jay walkers. Maybe the Police Chief will even ticket the public officials who jay walk or the crowds who block the side walk at area restaurants, because he always enforces the laws evenly and fairly.
Background Links and Documents.
- 1940 picture of guitar player in Provincetown: http://www.provincetowngov.org/historic/1940/p-16.html
- Provincetown Street Performers By Laws (Adopted in 1995, revised in 1998): http://www.provincetowngov.org/bl_regs/general_bylaw/2004GeneralBylaw%20FINAL.htm#_Toc76449203
9-4. Street Performances.
9-4-1. Purpose. The existence in Provincetown of street performers provides a public amenity that enhances the character of the town, and the town seeks to encourage such performances to the extent that they do not interfere with the reasonable expectations of (1) residents to the enjoyment of peace and quiet in their homes or (2) business owners to public access to their businesses. The bylaw seeks to balance the interests of the performers with those of the residents of the town.
9-4-2-1. Perform. Perform includes, but in not limited to, the following activities: acting, singing, playing musical instruments, pantomime, juggling, magic, dancing, reading and reciting, conducted live and in person, but shall not include presentations of audio/visual reproductions of such activities.
9-4-2-2. Performer. A Performer means a person who has obtained a permit pursuant to this By-law.
9-4-2-3. Public areas. A Public areas means public sidewalks, parks, playgrounds and all public ways in Provincetown.
9-4-3. Permit required. No person may perform in a public area without a permit issued pursuant to Section 9-4-4-1 of this bylaw.
9-4-4-1. Issuance. A permit shall be issued by the Police Department to each applicant therefor in exchange for a completed application.
9-4-4-2. Form of application. A completed application for a permit, and the permit itself, shall contain the applicant's name, residence address and telephone number, and shall be signed by the applicant. The applicant's signature shall constitute a certification that she or he has received, read, and understood the text of this bylaw. If a performer has knowingly provided false information in the application for a permit or has not signed the application, any permit issued pursuant to such application shall be invalid.
9-4-4-3. Term of permit. A permit shall be valid from the date on which it is issued through the end of that year.
9-4-4-4. Form of permit. A permit shall be non-transferrable, and shall contain the permit number of the applicant and the year in which the permit is valid.
9-4-4-5. Individual permits required. Each member of a group of performers who play together shall be required to obtain an individual permit.
9-4-4-6. Distribution of street performance bylaw. Upon issuing a permit, the Police Department shall also give the performer a copy of the street performance bylaw.
9-4-5. Display of Permit. A performer shall clearly display his or her permit while performing, or have the permit on her or his person, and shall allow inspection of the permit by any Provincetown police officer upon request.
9-4-6. Permitted Performances.
9-4-6-1. Location. Performances may take place in public areas except:
- 1. within one hundred (100) feet of an elementary and/or secondary school, library or religious facility while in session;
2. within one hundred (100) feet of a hospital at any time;
3. within one hundred (100) feet of Town Hall during business hours or any town-related meeting if any person transacting such business requests that a performance discontinue for the reason that such performance is hindering said business; and
4. public areas from which all performances have been excluded by vote of the Board of Selectmen after public hearing and notice thereon. Such notice shall be advertised at least once in a local newspaper no less than fourteen (14) days prior to the hearing.
9-4-6-2. Street fairs and public festivals. Performances may take place in public areas where an authorized street fair or public festival is being conducted, with the permission of the sponsor of such fair or festival.
9-4-6-3. Times. Performances may take place at the following times: seven days per week, between 11:00 a.m. and 11:00 p.m.
9-4-7. Undue interference. A performer may not create an undue interference with the passage of the public through a public area. If a performer attracts a crowd sufficient to obstruct the public way, such performer shall request that the crowd eliminate the obstruction. If such efforts to eliminate the obstruction fail, a police officer shall ask the performer to stop the performance until that part of the crowd that is creating the obstruction dispenses. A police officer may dispense the portion of the crowd that is creating the obstruction.
9-4-8. Non-criminal disposition of violations. Whoever violates any provision of this bylaw may be penalized by a non-criminal disposition as provided in G.L. c.40,'21D. For the purposes of this bylaw, the following officials shall be enforcing persons: Provincetown police officers. The penalty for each violation shall be fifty dollars ($50), with each day the violation exists constituting a separate offense. A performer who has not applied for a permit shall be given one written warning by a police officer informing the performer of the bylaw and the requirement of a permit before any subsequent violations are issued.
9-4-9. Exclusivity. The provisions of this bylaw shall take precedence over any other town bylaws applicable to street performances. To the extent that other town regulations or bylaws are applicable and are inconsistent with this bylaw, this bylaw shall govern.
9-4-10. Peace and quiet. A performance in accordance with this bylaw shall be presumed not to constitute a "noise nuisance," "disorderly conduct," or an "excessive musical or other noise" in violation of 13-1-2 or 13-2-6.
9-4-11. Severability. The provisions of the sections of this bylaw are severable, and if any part of this bylaw should be held invalid by a court of competent jurisdiction, such invalidity shall not affect the remainder of this bylaw and the remainder of this bylaw shall stay in full force and effect.
- July 23, 2004 Ada Hann letter to Provincetown Manager and Police Chief. View by clicking here
- July 24, 2004 Cape Cod Times "Artists stage a street fight" by Conor Berry: http://www.capecodonline.com/cctimes/artistsstage24.htm
- July 29, 2004 Provincetown Banner "Street Performers Moved Away from Town Hall" by Mary Ann Bragg http://www.provincetownbanner.com
- October 19, 2006 Provincetown Banner "Street performers noise debate back for encore" by Pru Sowers (see above) http://www.provincetownbanner.com
- July 26, 2007 Provincetown Banner "Street performers blast noise bylaw" by Pru Sowers (see above) http://www.provincetownbanner.com
Street Arts and Buskers Advocates
Copyright © 1999-2007 by Stephen Baird