Singers sue city, say they're harassed
Street players combat 1878 rule
Tired of being ordered to stop singing, dancing, and making music on the Boston Common and on city sidewalks from tony Newbury Street to historic Faneuil Hall, a group of street performers has filed a federal civil rights suit against the city of Boston.
''Artists have been arrested and threatened with arrest for 30 years; I'm tired of it," said Stephen Baird, a musician from Jamaica Plain who was ordered by a park ranger earlier this week to stop playing his guitar or hammered dulcimer, a precursor to the piano that sounds like a harp, on Boston Common.
''Essentially, they say you need a permit, but they won't give you one," Baird said. He had been issued an itinerant musician's license by Boston police, but he said he was told that he needed another permit from the Parks Department to play on the Common, though park rangers acknowledged that such permits are not given to musicians.
''They really don't want you there, and they're going to use these rules to essentially keep you from playing there," Baird said, adding that he and other licensed street performers have been threatened with arrest over the past year if they did not leave Newbury Street or Dock Square and the area surrounding Faneuil Hall.
The Boston law firm of Testa, Hurwitz & Thibeault, which has taken up the cause pro bono, filed suit Wednesday in US District Court in Boston, challenging the constitutionality of a 19th-century police regulation and a city ordinance that restrict street performers.
The suit -- filed on behalf of Baird and the Community Arts Advocates Inc., a nonprofit group representing 30 musicians, singers, actors, magicians, puppeteers, and artists -- names as defendants the city, the Boston Police Department and its commissioner, and the Boston Parks and Recreation Department and its commissioner.
''There's a First Amendment right to express yourself artistically," said John J. Cotter, a partner in the law firm representing the performers. Cotter called the ordinance ''unconstitutional on its face," because it puts too many restrictions on where and when a musician can play and on ''the type of noise that can be made."
Because of the ordinance, Boston police established a rule in 1878, which has been revised numerous times, setting licensing requirements. The suit said it includes a provision that a licensed female musician cannot play on Boston's streets unless accompanied by a male musician.
It also prohibits licensed musicians from playing on city streets on Sunday or at any time within 500 feet of a school and limits playing time in many prime downtown locations to between 6 and 9 p.m., according to the suit.
Mary Jo Harris, legal counsel for the Boston Police Department, said yesterday that the rule was recently revised, removing the sexist language and other provisions, and she said she thought that problems over licensing and permitting for street performers had been resolved.
''If you want to hang out in the sun on Boston Common and play your guitar, there's nothing to prevent you from doing that," said Harris, adding that street performers should not be ordered to leave, as long as they have the required license from Boston police. She said a park permit is not required to play there.
But Cotter said he did not believe the revisions had yet been adopted, pointing out that Baird was ordered to stop playing on the Common earlier this week because he did not have a permit.
Cotter also said that the revised version of the rule ''does not go far enough to remove all constitutional concerns we have."
The lawsuit urges US District Judge Nancy Gertner to rule that both the city ordinance and the police rule are unconstitutional, and to declare that street performers have the right to play music, perform, display artwork, and peacefully solicit donations on city streets and sidewalks and in parks.
Baird has taken his cause on behalf of street performers across the country, from Boston to New York and Chicago, since the 1970s. Last fall, he spearheaded the campaign that led to the MBTA's agreement to reverse its ban on amplified music inside subway stations. The T agreed to allow the music as long as it is not too loud.
Communityartsadvocates.org, Baird's website, offers a history of street performers, including Benjamin Franklin, who sang broadside ballads on Boston Common.
Baird said he did not know of any recent arrests of street performers, but he said, ''The harassment stops the artists from performing. I know people have been leaving town, and people don't even try to play here because of the level of hostility." 