Subway performers rally on Second Ave

In the last five years, we have worked hard to ensure that no performer is wrongfully ejected, ticketed, or arrested for artistic performance in the New York subway system. We believe that artistic performance is a gift not only to the performing community, but to subway riders as well.

That’s why it’s particularly troubling to see stations on Second Ave, a subway line hailed for integrating public art, as the site for harassment and wrongful ticketing by NYPD officials. In the press release below, as well as on Facebook, BuskNY is announcing a rally in support of our core idea: that freelance performers deserve respect and equality in public space.

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Subway safety update: 2016 so far

 

Since the ‘subway crackdown’ in 2014, BuskNY has observed a decline in incidents of wrongful arrest, ticketing, and ejection. We’re thankful for the actions of those like Andrew Kalleen, whose public denunciation of his wrongful arrest gave greater publicity to the legality of subway performance.

This year so far, there have been concerns about ejections at Bedford Avenue and at Times Square, as well as about arrests elsewhere in the system. Because BuskNY has had fewer volunteers available for outreach, we are unsure of the extent of this problem. However, other performers have worked on outreach and are working to organize a civil rights lawsuit. If you are aware of an incident or would like to speak about the logistics of contacting a lawyer, please reach out using our contact page.

In other news, author, messenger, and subway music enthusiast Kurt Boone will be presenting his new book Subway Beats on November 14 at the New York Public Library. We’ll be in attendance and would be thrilled to see you there.14285705_10154624638474739_391853877_o.jpg

Busking at 30: Subway Music Festival

Thirty years after New York City constitutionally protected subway performance, BuskNY is pleased to announce “Busking at 30,” a one-day music festival on August 23rd, in celebration of an art form that has long given voice to the city’s wealth of musical traditions and genres.

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The festival, to be held in Brooklyn’s Von King Park, is timed to coincide with the passage of City Council Resolution #705, which recognizes the 30th anniversary of the 1985 court case People v. Manning. That case is known among performers for granting constitutional protection to artistic performance in New York City’s subways, thereby defining the unique musical diversity of the city’s underground.

At the festival, some of the city’s best known subway performers will offer intimate performances at spots through the park during the afternoon. Then, thanks to the generosity of supporters of BuskNY’s ongoing Busking at 30 crowdfunding campaign, the park amphitheater will be electrified from 5:00 to 7:00 by subway fan favorites like banjo duo Coyote and Crow, American Idol contestant Najah Lewis, and the same guitarist named in the original 1985 court case, Roger Manning.

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With the recent rise in arrests and harassment of subway performers, “Busking at 30” aims to highlight the importance of this underground culture and what it brings to the diverse and vibrant culture of New York City. We thank you for your support in making the festival possible, and we look forward to seeing you there!

Subway Performers Decry Auditions

This morning, BuskNY is at the Music Under New York auditions, pointing out the negative effects that MUNY’s banners have on freelance musicians who give over 90% of all subway performances.

If you’re stopping by, please check in with us. Our Press Release follows:

FOR IMMEDIATE RELEASE

CONTACT
Matthew Christian – matthew@buskny.com
Adam Walsh – adam@buskny.com

SUBWAY PERFORMERS DECRY AUDITION,
PROTEST WRONGFUL ARREST

Since 1985, subway music has been constitutionally protected in the New York City subway – and from
1987 on, MTA rules have specifically authorized artistic performance for the general public. Still, on
Tuesday, May 19, the MTA will hold auditions to provide banners to a select few musicians – a practice
that has come under increasing scrutiny for its tendency to place the city’s freelance performers at risk
for wrongful ejection, ticketing, and arrest.
Music Under New York, the MTA program that manages the promotional performance program,
provides a visible public face of performing arts in the subway; past internal MTA reports have lauded
its contribution to MTA approval ratings. Yet, subway performance advocacy organization BuskNY
notes, over 90% of all performances are given by freelancers – while MUNY performers provide,
according to the MTA website, a tiny fraction of all live music, with a mere 20 performances daily.
Worse, advocates say, freelance performers are negatively impacted by the mistaken impression that
MUNY membership is a legal requirement to perform. Many freelancers receive tickets or are ejected
from the stations where they perform; according to BuskNY, its data shows this type of harassment
particularly affecting Black and Latino performers, as well as musicians with disabilities.
In one much-publicized case, singer and guitarist Andrew Kalleen was arrested in the fall of October
2014 when a police officer, apparently referring to MUNY’s promotional banners, mistakenly claimed
that Kalleen needed a “permit” to perform in the Metropolitan Avenue “G” station. (According to
freelance performers, MUNY’s promotional banners are widely referred to as “permits” by police and
by MUNY members).

Freelance performers credit this inaccuracy as the cause of many arrests, and say MUNY has done little
to clarify the situation. “Every year, MUNY’s auditions are covered by national media – and many
reports claim, mistakenly, that MUNY membership is a legal requirement, or that MUNY provides a
‘permit’ to perform,” says Matthew Christian, co-founder of BuskNY.

Christian adds that MUNY’s promotional materials and website make no mention of the law permitting
public performances, leading police and media to believe MUNY is a legal requirement. For its part,
MUNY has refused meetings with freelance musicians – and this year, advocates’ permit to distribute
flyers outside of the MUNY audition was denied. In 2015, it seems, the fight for performers’ rights
continues.

1985-95: Forgotten history of activism

On Thursday, BuskNY and City Lore will host an evening of songs and stories in a first commemoration of the 1985 case People v Manning, the first to explicitly provide constitutional protection to New York City’s subway performers.

But though Manning was a crucial step forward for performers, it was far from a definitive legalization. The preparation for this program has led us across a trove of documents that reveal a story of legalization more complex and more hard-fought than what is often told. This post will seek to rectify the paucity of information on that era by presenting a few of the performers, activists, and original documents that shaped the period.


The chapter of subway history most familiar to today’s performers is the 1985 case People v. Manning. In that case, “punk-folk vagabond” guitarist Roger Manning contested tickets he received, in the spring of 1985, under the then-current MTA regulation 1051.3, which forbade riders to “entertain passengers by singing, dancing or playing any musical instrument.”

The original People v Manning summons

The original People v Manning summons

In the first case where constitutional protection was explicitly granted to subway performance, the court found in his favor, establishing rule 1051.3 as “unconstitutionally violative of the First and Fourteenth Amendments,” relying on NYCLU lawyer Art Eisenberg’s citation of previous First Amendment protection in the 1968 case People v St Clair:

People v Manning, 1985

People v Manning, 1985

In her decision, Judge Diane Lebedeff notes that the NYCTA “amended its regulation concerning disorderly conduct effective June 14, 1985.” In that amendment, in which the modern-day rule 1050.6 was created, the TA “no longer place[d] a prohibition on any kind of entertainment.” In other words, in the nick of time before the release of the Manning decision, the TA had already removed its explicit restriction on performance.

Still, in practical terms, People v. Manning and the accompanying rules change left the subway little safer for most performers. Summonses continued to be written, not only on pretexts like blocking traffic, but also under the new 1050.6(b) ban on “solicit[ing] money for goods, services or entertainment.” Although performers accepted donations rather than soliciting them, this nuance was lost on MTA agents — and on police as well.

Worse, the MTA attempted to describe membership in the new program Music Under New York as a legal requirement:

1985 MUNY "permit"

1985 MUNY “permit”

Enter Lloyd Carew-Reid, an Australian-born classical guitarist who chose to contest the MTA’s summonses. Carew-Reid’s fight stuck, both legally and in the public eye. Ultimately, the MTA was forced, according to a January 30, 1987 AP article, “to put a moratorium on issuing summonses” to subway performers. (Later, in 1989, it would issue the new rule 1050.6(c), recently publicized during the arrest of Andrew Kalleen, which for the first time explicitly stated that “artistic performance, including the acceptance of donations” was permitted).

Carew-Reid in NY Post, 1987

Carew-Reid in NY Post, 1987

For this reason, Carew-Reid argued in performer and journalist Stephen Witt’s long-running column The Street Singer’s Beat circa 1989, “Roger [Manning]’s case [only] brought on a new law, ‘No entertainment for the purpose of soliciting’. My case actually changed the policy. That’s why for the last two years, nobody has been ticketed.” In a word, then, 1987 saw the practical legalization of performance as the MTA ceased to systematically issue tickets; 1989 would then see explicit allowance of busking, under 1050.6 (c).

Carew-Reid, featured in The Street Singer's Beat

Carew-Reid, featured in The Street Singer’s Beat

Carew-Reid and his advocacy organization, Subway Troubadours Against Repression (STAR), went on, in a historical series of public hearings, to successfully fight a proposed rules change banning performance on platforms. STAR also fought a ban on amplifiers on the platforms, arguing that the rights of those performers whose genres inherently involve amplification were being violated. (This argument resulted in a stay against the amplifier ban by the Second Circuit Court of Appeals, but was ultimately rejected. Amplifiers remain banned on the platform, but are permitted on the mezzanine level).

Following STAR’s lengthy fight to protect performers, the gap was filled, in the late 1990s, by the Street Performers Advocacy Project, which emerged from the pioneering academic work of Susie Tanenbaum. SPAP produced a written pamphlet to advise performers of their rights, and informed countless more through a widely-cited online resource, the Know Your Rights guide.Underground Harmonies

Still, despite these decades of advocacy, the safety of subway performers remains precarious. Due to inaccurate media coverage of Music Under New York auditions, which erroneously suggest MUNY membership to be a legal requirement or “permit,” performers continue to be wrongfully ejected, ticketed, and even arrested.

Subway performers rally at City Hall, August 2014

Subway performers rally at City Hall, August 2014

As one such arrestee, I have channeled my experience into co-founding BuskNY, which has spoken out for threatened performers. Others, including  Erik Meier and Andrew Kalleen, have spoken out, with Kalleen’s video alone reaching 1.5 million viewers online.

The most recent chapter of subway performance history has thus seen greater attention brought to the legality of performance — and, we hope, a move toward the definitive end of the oppression fought by Manning, Carew-Reid, STAR, SPAP, and many more.

Safety Alert — Wrongful Arrest at Second Avenue

Press release: BuskNY Condemns Latest Subway Music Arrest

The apparent silver lining to the October, 2014 arrest of Andrew Kalleen was massive attention to the wrongful arrests experienced by our community. With many performers, BuskNY hoped that Andrew’s choice to speak out would lead to a reduction in harassment.

It turns out that the solution won’t come so quickly. This past Thursday, Erik Meier, a huge part of the performing world centered around Metropolitan Avenue, was arrested at on the Second Avenue F platform. He was held overnight and ultimately charged — this gets a little surreal — with “loitering” and “sleep[ing] or doz[ing] where such activity may be hazardous to such person or to others.”

Erik Meier

From everyone involved in BuskNY, we’re deeply disappointed. It’s time for the NYPD to address the need to train its officers — and it’s time for the MTA to address the role that its promotional program, Music Under New York, plays in generating misconceptions. MUNY’s well-publicized auditions have led too many New Yorkers believe that program membership is a legal requirement — and every year, that leads to wrongful arrest of the freelancers who give over 90% of all subway performances.

There’s good news. Folks are organizing out there, and Erik is not going to hesitate to sue. (He won’t have difficulty, either: in the last three years, performers’ suits have added up to $50,000 or more in wrongful arrest settlements). Still, it’s tough for those of us performing. Keep the songs coming — and reach out if you need a banner or another copy of those rules!

Ramón fights and wins in Grand Central

This is Ramón Peña. He’s from Puerto Rico, he’s got pipes — and he’s also one of the bravest subway performers we’ve met.

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I met Ramón in Grand Central between the 456 and shuttle, as he was being ejected. ‘Ejected’ is a funny word: in Ramón’s case, it means that two police officers were requesting him to immediately exit the subway system, with the alternative being arrest. Yes — because he was singing.

Ramón wasn’t having it. He got the police to specify further: they said a call had been made to them by the station agent, and that any responsibility for the ejection was with the MTA, not them.

Ramón took them at their word. Together with me and Yuri, a friend of his, he went out to the station booth. The station agent didn’t back up the cops: to the contrary, he said, Ramón was just making music, and that hurts no one. (I admire him, but he was adamant that his identity not be publicized).

He did, however, direct Ramón to his higher-up, the station supervisor. We waited.

The station supervisor eventually arrived, and began to run us through a list of excuses. Ramón isn’t in MUNY, he said, and wasn’t in the MUNY spot [neither of these things are legal requirements], and couldn’t he just move, and would we please turn off the camera.

We didn’t.

Ultimately, the station manager talked himself into a corner. He accepted that Ramón had the right to play, but insisted that the MTA required him to call the police over any complaint, even a wrongful one. (I asked whether he would use his discretion on any complaint — he said no — and whether he would call the police if a rider complained, quote, “that I was gay.” He said he would).

Still, he had agreed that Ramón was cleared by the rules. Ramón asked if there was any objection to his performing an encore, and there wasn’t. He reclaimed his spot, and this is what we heard:

Power changes everything, indeed, Ramón. Keep telling ’em, and keep ALL music alive beneath New York!