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.

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Charges dropped

This is the second post in our case database series.

I would write up today’s news that the charges associated with my July 25th arrest were dropped, but there’s very little fanfare to report. When my name was called in court, I didn’t even have fifteen seconds of fame: the judge asked if I was indeed named Matthew Christian, I said I was, and she said: “alright, you’re all set.” And that was that: no paperwork, and not the least crumb of a sense that the city regrets having had me arrested for playing the violin.

There is one very important piece of take-away information from these: having video evidence of your arrest is important. In the video I took, my arresting officer insists that I’m not allowed to perform without a permit. That claim — which he used on video to justify my arrest — doesn’t hold water legal, as there is no such permit. The police flirted briefly with charges for blocking traffic, but since the police in the video had raised no concern about traffic, and since there had been no visible problem with traffic, they changed to a very dated state law concerning train stations.

The assistant district attorney handling my case could evidently see that wouldn’t fly. My Legal Aid attorney informed me a week ago that they had spoken by phone and that the charges would be dropped.

Could this case have gone differently? Sure: my arrest on 6/18 involved precisely the same circumstances, but because I didn’t take a video, I’m still charged with blocking traffic. If my arresting officer from 7/25 claimed that I was blocking traffic, it’s patently obvious that he’s lying; but if my arresting officer from 6/18 claims the same thing, it’s his word against mine. That case will be resolved tomorrow, and unfortunately, the lack of video means I’ll have to accept an ACD.

 

Case closed: disorderly traffic summons

This is the first post in our case database. Hoping it grows, to give performers more information about dealing with legal threats in the future.

We had some good news in court today — not for me, but for a friend. She had been issued a pink summons for playing the guitar and singing at 53rd St. Once again, the charge didn’t fit the crime artistic performance: she was facing §240.20, ‘Disorderly Conduct.’ The statute reads:

A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:
[…]
5. He obstructs vehicular or pedestrian traffic.

Of course, it could have been worse: she could have been charged with section 7, “[creating] a hazardous or physically offensive condition by any act which serves no legitimate purpose.” These laws are so hurtful!

On a more serious note, she went in for her court date and reports having had the charges immediately dropped. So that’s a victory for sanity, for music, and for culture. Cheers, all!