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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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!

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.

2014 Kickstarter: “We Are Culture” T-shirts

A couple of days ago we launched our Kickstarter campaign to make new t-shirts. They’ll be free for performers like before, and you can also get one for $25 by backing our project!

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The 2014 shirt

BuskNY 2014: “We Are Culture”

by Matthew Christian


Art by Heidi Younger, Chris Wright, Marina Ross, and Ron Richter

Art by Heidi Younger, Chris Wright, Marina Ross, and Ron Richter

We also have made a Facebook event for our art show SHOWTIME: Underground Arts, which so far features art by Chris Wright, David Everitt-Carlson, Ron Richter, Marina Ross, and Heidi Younger and will be opening October 3. We are hoping to get more artists involved before the Sept 19 deadline– if you have any art to submit or would like to perform at the opening, please send me an email at milo@buskny.com.

7th Busker Ball

This Thursday we attended the 7th quarterly Busker Ball, an event organized by Theo Eastwind, in which some of the best buskers in New York performed at Williamsburg bar and music venue Spike Hill. Theo has been inviting us to speak about busker’s rights, distribute flyers and sell t-shirts for the past few Busker Balls.

The lineup for this season’s show:

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Matthew Christian, back from Dakar, gave a presentation about BuskNY. Matthew outlined what we’ve done in the past year and our current projects, and announced our plans for the 2014 BuskNY T-shirt.

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It turned out Matthew had left a cache of misprints of last year’s shirt in a drawer. We sold a few but gave most of them away to the performers.

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Our design for this summer’s shirt. I’m planning on cleaning it up a bit and printing with four colors on dark colored shirts. I’m using a different technique of printing this time in which each layer will be hand-painted directly onto the screens without the need for photo emulsion or an exposure unit.

Following the success of last year’s Kickstarter campaign, we will be raising the money to make our new shirts free to all performers. We would like to include footage of a variety of buskers in our video, so if you would like to participate you can either send your own brief clips (webcam or phone video is fine) of yourself performing or speaking about busking and police harassment to milo@buskny.com, or contact us so that we can film you ourselves later in the month when we’re putting the video together.

The next Busker Ball is October 30th at 7:30 at Spike Hill!

“They are disbanding my family”: NYPD crackdown continues

Nick Malinowski, a civil liberties activist who’s been an active opponent of Bill Bratton’s return to ‘Broken Windows’ policing, recently interviewed Heidi Kole, a long-term busker and busking proponent, over at Alternet.

Image: littleny/Shutterstock

It’s an in-depth interview that gives an inside perspective on the crackdown and its effects on the performing community. Good weekend reading, and a required text for folks reporting on the effects of the #WarOnShowtime. Check it out here.

10 Favorite NYPD Quotes on Busking

Heidi Kole posted this brilliant list today at the Subway Diaries. BuskNY has tacked on a couple at the bottom — anyone care to add further?
1. “Oh those rules, yeah I know all about those rules, we don’t care about the rules.”
2. “What rules?”
3. “Heidi, I thought we had an agreement? You wouldn’t sing & I wouldn’t bother you?”
copsupbway
4. “Oh that that First Amendment thing again, we’ve heard of that, it doesn’t matter, you’re still getting a ticket.”

5. (Lean in & Whispered) “This platform is actually a terrorist target”

6. “Technically you’re not doing anything illegal, but you still can’t do it.”
7. “I’m gonna give you a ticket ’cause my supervisor wants to see I’m doing something useful, but once I”m gone you can start singing again.”

8. “Have you ever thought of conforming?”
9. “Don’t start getting rulezy with me.”
10. “I AM THE LAW!” (For proper pronunciation, lean on that first ‘a’ for a bit).