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.

Performer arrested at Metropolitan Avenue

BuskNY and the performing community were disturbed to learn of a new wrongful arrest. A longtime, well-loved performer was arrested early this morning at Metropolitan Avenue, a key station for Brooklyn performers. Fortunately, he was well-prepared: a copy of the rules of conduct was in play, and the full arrest was documented on video:

BuskNY is preparing a public response to this arrest. Please reach out if you would like to be updated. We thank this performer for standing up to the undocumented and ungrounded ejections that occur daily in New York City — and we believe, as always, that the end of wrongful ejection, ticketing, and arrest is in sight.

Busker Ball VIII

BuskNY was proud to speak at Busker Ball 8, a showcase for the city’s most vibrant freelance performers, on Thursday. Under the direction of Theo Eastwind, the latest Busker Ball brought its focus to activism, criticizing the wrongful ejections, tickets, and arrests that have plagued the NYC subway performing community.

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Grace Kalambay performs

BuskNY spoke and displayed the banner we used for our rally at City Hall, and the audience also heard a recorded update on buskers’ rights from Nick Broad of the Busking Project.

Performers included Lawrence Wilson, Eli Bridges and Ken Shoji, Theo Eastwind, Grace Kalambay, Cathie Russo, and Mr. Reed.

6th Busker Ball


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Last Thursday was the 6th Busker Ball at Spike Hill, and BuskNY was there to give another report on the state of buskers’ rights in NYC.

Shiloh Levy gave a speech about the recent and planned further increases in enforcement of “quality of life crimes” (which results in increased enforcement of fictional laws as well.) Matthew asked me to check out Union Square a couple weeks ago and I went up and down every line; it was totally silent underground except for a single MUNY performer and a religious pamphlet table. Since then buskers have begun to return, but in smaller numbers, and I haven’t seen a churro vendor anywhere since.

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Meanwhile Kalan, whose recent arrest has prompted some pretty bizarre political commentary as well as the more straightforward news coverage, arranged his equipment and assorted beasts, and ended the presentation with puppetry and balloon music.

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In other news, last night I managed to make it down to open mic night at Goodbye Blue Monday for the first time since the place was saved from shutting down. In addition to coming out to the Busker Ball next time, I encourage everybody to check out GMB on a Tuesday night or whenever you can, and make sure the place doesn’t suddenly evaporate like Pearl Paint.

Fifth Busker Ball

Theo Eastwind suggested we sell the leftover “Music is Legal!” t-shirts at the 5th Busker Ball last Thursday at Spike Hill so I went to set up a merchandise table and took a lot of blurry shots of the show. We even got one of our shirts pinned up to the curtain with Blueberry Season pins.

photo taken by Shiloh Levy

photo by Shiloh Levy


It was a great show! I encourage anybody who missed it to come to the next Busker Ball on April 24th– and ask Theo about getting involved if you want to perform.


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BUSKERBALL 038Shiloh and Heth talking about BuskNY

Shiloh Levy gave a presentation about buskers’ rights explaining what BuskNY is all about, followed by Heth of Heth and Jed who discussed his recent legal victory. I gave the last ten or so shirts to Arthur and Shiloh to distribute, so now I have room for the 2014 shirts. We learned a lot about what people want in a shirt from the first run, so I’m planning on doing something a little more complicated, and with a more inclusive message. There may be another Kickstarter campaign to raise funds for materials and equipment. I’ll keep you updated!

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.

 

Disobeying: letter from the front lines

I recently got this email from a friend and fellow performer about an incident at the 53rd St mezzanine. I immediately knew I had to share it, not for the nice things she says about our work, but because her description of what’s involved emotionally in standing up to a wrongful order from a police officer is spot-on. I’ve been in her shoes, I know how scary this is, and I’m glad she got it on paper:

“Just a note to let you know how empowered [BuskNY] makes buskers feel. At one time we had no one to stand along with us when we were harassed by policemen.

I had an incident tonight that went over pretty well.  Once again, I was singing at 53rd Lexington, (Upstairs on the mezzanine where MUNY performers are scheduled). This is the exact same place I received the first ticket and summons.  Well, to make a long story short, everything was going quite nicely until an officer walked up to me and said, “You have five more minutes and then you wrap it up. I’m at this station now.”  My response was why did I have to leave.  He told me it was because I did not have a permit. I then informed him that I had a right to perform on that mezzanine without a permit and that Tim Higginbotham of MUNY told me to contact him whenever a policeman approached me about that location.  Well, the officer did not want to hear it and told me when he came back he wanted me to be gone. I told him I had the same problem with Officer Valdez because he was not informed that performers had a right to play at that station. I told him that if I were to be ticketed that I would sue this time.  He said, “do what you want but you have to leave.”

I was so angry but I thought about my equipment. A performer told me that the police took his equipment away from him and he never got it  back. But as I began packing up I thought about BuskNY and suddenly felt empowered. I refused to leave. I continued singing. All the while I imagined officers around me, handcuffing and taking me away. Yes, I was prepared for that. I had made up my mind that no matter what the officer or officers said to me that I was going to ignore them and just keep singing.

After about an hour, the officer came back upstairs, saw me singing and walked past me mumbling, “you’ve been here well over an hour now.”  BUT he did not bother me. I think it helped when I called the officer’s name that ticketed me the first time but also…I made sure to tell him that I was going to put in a lawsuit. I felt it was something I was able to do easily with BuskNY.

I just wanted to share this story with you and let you know once again how wonderful it is to know that someone and something ‘has your back’ as a performer. It’s tough enough giving the best you have of your talent while most people just walk past you without giving what you do a thought, less lone being hassled by policemen.  Your courage has given me courage.”

Performers are wrongfully ordered around by police every day in this city, and standing up to that problem means putting our equipment, our livelihood, our physical freedom, and our safety on the line. It’s scary, it’s very real, and it’s just not going to happen if no one has performers’ backs with legal tips, paperwork, model cases, and moral support. For one, I’m glad we’re doing the work we do.