On The Front Lines
Rutherford Institute Warns Maryland Officials Against Infringing First Amendment Rights of Street Musicians to Perform in Public, Accept Tips
CHESTERTOWN, Md. — Defending the First Amendment rights of musicians to engage in the time-honored practice of street performing (or “busking”), attorneys for The Rutherford Institute have warned officials with the Town of Chestertown, Maryland, against requiring musicians to obtain a permit before performing in a public park and forbidding them from accepting tips. Institute attorneys were asked to intervene after Chestertown officials allegedly informed buskers who were invited to perform at the Town’s Artisan’s Market that they must obtain a permit and could not accept tips. In their letter to the Chestertown mayor and town council, Rutherford Institute attorneys point out that the town’s public parks constitute traditional public forums where citizens are entitled to engage in free speech and expression, including street performing and the solicitation of donations for the performance. Institute attorneys filed suit in a similar matter in Ocean City, Md., in 2011, which resulted in city officials agreeing to respect the free speech rights of sidewalk performer and artist Mark Chase.
The Rutherford Institute’s letter to Chestertown officials is available here.
“Street performers and musicians have the same rights as any other citizen to freedom of expression, particularly in public parks,” said John W. Whitehead, president of The Rutherford Institute. “No matter what the medium, whether it’s spoken, written, sung, painted or played, expressive activities are clearly protected by the First Amendment. Government efforts to censor, silence or restrict these activities are not only unconstitutional but downright un-American.”
Earlier this summer, officials with the Town of Chestertown invited local musicians to perform at its popular Artisan’s Market held in Chestertown’s Fountain Park on Saturday mornings. Although musicians were invited to perform in the park, they were told that they must first apply for and obtain a permit and that any solicitation of tips or donations, such as by placing a hat or open instrument case on the ground, would be prohibited. One musician, local radio personality and singer/guitarist Keith Thompson, who was asked to perform in the park, canceled because of his objection to the ban on solicitation and acceptance of tips. The issue gained momentum on radio, through Facebook, and was eventually a topic of discussion at the Town Council’s June 18, 2012 meeting, where the Town Manager reportedly stated that the Town does not allow musicians to solicit tips in the park or elsewhere on public property. In warning Chestertown officials against infringing on the musicians’ rights to free speech and expression, Rutherford Institute attorneys point out that Fountain Park is a traditional public forum where the First Amendment rights of citizens are at their zenith, and the Park remains such a forum even during the Farmers Market. Moreover, Institute attorneys note that requiring buskers to obtain a permit is contrary to numerous court decisions holding that it offends the Constitution to require a citizen to register with the government before engaging in speech. Additionally, the ban on soliciting or accepting tips offends the First Amendment because there is no governmental interest supporting the ban. In their letter to Chestertown officials, Institute attorneys cite as support a decision in one of their recent cases from Ocean City, Maryland, in which a federal court struck down restrictions on street performers that required buskers to register with the government and forbade them from accepting money.
