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Street performer case still in the legal wings

This article first appeared in the St. Louis Beacon, July 12, 2013: U.S. District Judge Catherine D. Perry heard arguments Friday in a preliminary injunction hearing for Pence v. City of St. Louis. In this case, the American Civil Liberties Union is representing two street performers who object to the city’s busking policies.

The city required a $100 fee for a busking, or public performance, permit. Performances covered include “but is not limited to, the following activities: acting, singing, pantomime, juggling, magic, dancing and playing musical instruments, radios or other machines or devices for the producing or reproducing of sound.” And it requires what was described as an audition for the performers, though the city contends that the audition term is misleading.

On May 28, Perry entered a injunction that set a $50 limit on a busking permit for individuals ($100 for groups). And required the city to refund or credit any payments that had been made over that amount.

In today's hearing, the city asked to withdraw its consent to the earlier injunction and asked that, if the injunction were to stand, the plaintiffs put up a $25,000 bond. The ACLU, representing two musicians, asked that the permit requirement be removed completely and said the definition of prohibited performance spaces is too vague.

Perry said she was not likely to make her ruling until the week of July 22, citing a number of unanswered questions.

According to the defense, the fee increase for a permit came about by necessity. The only witness the city called was Michael Hulsey, administrative assistant to the streets department who is responsible for administering permits. In response to Emerson’s questions, Hulsey said his calculations showed that the average cost to city for working on permits was $72.56. This was calculated using Hulsey’s hourly and overtime wages.

As for the “audition,” Hulsey said the term was a misnomer that had been used by secretaries. He said he requires a pre-approval meeting with a street performer, in which he would ask what the act entailed to ensure that it would not threaten public safety. He would also share information with the performer and use the meeting to gain knowledge about who had a permit, since patrols are also a part of his duty.

Hulsey said he has no legal authority to tell people where they can or cannot perform, as that duty rests with law enforcement in the areas where public performance is prohibited.

As Perry noted toward the end of the hearing, though, the definition of “public areas” was unclear. She questioned whether, for example, the sidewalks surrounding Union Station would be an acceptable place for a public performance, even though Union Station itself prohibits the activity. Emerson replied that it was implied that the sidewalks would be acceptable.

Emerson said this ordinance only pertains to those who busk in hopes of receiving monetary tips.

Tony Rothert, legal director for the ACLU, said that regardless of the involvement of money, regulating any person or group’s ability to express themselves publicly violated their first amendment rights. Rothert argued against the necessity of a permit at all, saying it was an example of “classic prior restraint.”

He added that the city already has trespassing and noise ordinances that would take care of any disturbances related to street performers, and that the city could save money by eliminating the permit process.

All three of the witnesses called by Rothert, including the two plaintiffs, cited the $100 fee as a burden. Nick Pence, a musician who is one of the plaintiffs, has not attempted street performance in the city or obtained a permit because of the cost.

Emerson closed by saying that permits help maintain order, keep the government informed of who has them and who does not and leaves the alternative of performing in any public space so long as the performer is not asking for a tip.

He did say, though, that the ordinances relating to these permits could be improved, and that the city had plans to revise them. The board of aldermen will not be meeting again until Sept. 13.

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