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St. Louis license requirement has street performers singing the blues

By   /   June 25, 2013  /   2 Comments

By John K. Ross | for Missouri Watchdog

If Frederick Walker has his way, St. Louis street performers may soon have an easier time getting a license.

In May, Walker, a 70-year-old jazz saxophonist represented by the ACLU of Eastern Missouri, sued the city over a $100 fee and a requirement that buskers audition in front of a streets department employee before hitting the streets.

WALKER: Suing the city of St. Louis over its new busker license requirement.

WALKER: Suing the city of St. Louis over its new busker license requirement.

His efforts have already born some fruit, as the city has agreed to stop requiring auditions.

The fee and audition ran afoul of constitutional protections for “expressive activity,” according to the ACLU’s complaint.

A second civil liberties group, the California-based Pacific Legal Foundation, joined the lawsuit this month, arguing the subjective nature of the auditions violated the right to earn an honest living.

“The audition requirement allows a government bureaucrat unlimited power to choose when to allow a person to earn a living as a street performer — without any guidelines or limits or criteria or anything,” Tim Sandefur, an attorney at PLF, told Missouri Watchdog in an email.

Restrictions on economic activity must “protect the public against dangerous or dishonest activities,” Sandefur said. “[City officials] can’t just pick and choose who should be allowed to run a business, even if that business is just playing a guitar on a street corner.”

Maggie Crane,  a spokeswoman for Mayor Francis Slay’s office, said the city has agreed to to stop the audition process, but also at issue is the fourfold increase — from $25 to $100 — in the price of the license that the city instituted earlier this year.

The ACLU argues it can take months for buskers to earn enough to pay the $100 permit fee — a substantial burden on the entertainers, many of whom only perform in the warmer months of the year. Groups like The Thin Dimes, a six-piece blues and folk outfit, must pay $600 each season — $100 for each member.

Crane told Watchdog the city needs the money to cover overtime costs for city workers who deal with the occasional busker who irritates more than entertains.

“City workers were being called out when there were noise ordinance violations and so forth that had to deal with buskers,” she said.

The $100 fee is two to five times what cities such as Chicago and New Orleans charge per year. Also, unlike other cities, the law applies even to performers who do not collect tips.

Meanwhile, these street performers will not be allowed at all in some areas of St. Louis.

“The city prohibits buskers from performing in certain areas of the city regardless of whether they have a permit,” Tony Rothert, legal director of the ACLU of Eastern Missouritold Missouri Watchdog“It is unclear what legal authority there is for most of the location restrictions of what basis the city has for making any part of the city a busker-free zone.”

In May, U.S. District Court Judge Catherine Perry temporarily blocked the city from charging $100 for the permit until a July 12 hearing.

“Even where a licensing fee is permissible in the Free Speech context, the government may charge no more than the amount needed to cover administrative costs…and maintain public order,” Perry wrote.

Luckily for St. Louis residents craving Walker’s smooth jazz stylings, the performer decided to pay the fee while the case plays out. For now, Walker is a fully licensed musician.

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  • nicmart

    “The kind of man who wants the government to adopt and enforce his ideas is always the kind of man whose ideas are idiotic.” — H. L. Mencken

  • Joe Street Musician

    The following link is a pdf file detailing the decision made by the U.S. Court of Appeals for the Ninth Circuit in Berger vs The City of Seattle (June 24th 2009).

    http://cdn.ca9.uscourts.gov/datastore/opinions/2009/06/24/05-35752.pdf

    In an 8 to 3 decision, the Court deemed the following methods of restricting our right to freedom of expression, with respect to street performing on public property, unconstitutional.

    “(211) This litigation, originally brought by Michael Berger, a
    street performer, requires us to consider the validity of five
    Campus Rules. The first four affect street performers only:
    Rule F.1 requires a permit for street performances and
    requires badges to be worn during street performances, Rule
    F.2 sets the terms of conditions of obtaining a permit, Rule
    F.3.a bars active solicitation by street performers, and Rule
    F.5 limits street performances to sixteen designated locations.2
    Another provision affects all persons in the Seattle Center:
    Rule G.4 forbids speech activities within 30 feet of a captive
    audience. Berger mounts a facial attack on the constitutionality
    of these five restrictions.”

    This was a huge win for our treasured constitutional rights, as well as a wake up call to all those petty bureaucrats who think their jobs as public servants allows them free rein to twist and manipulate our constitutionally protected rights however they see fit.