Removing a street performer from public space under color of law is a crime.
Even if the space is privately owned (like parts of Salem, or even Faneuil hall/ Quicy Market for that matter), the presence of the public means that it is de facto public space. This includes college campuses, malls, shopping plazas, that are all available to the public.
It is illegal for private security to use force against non-aggressive buskers or their possessions.
Removing a street performer from public space under color of law is a crime.
Busking is protected under the 1st and 14th amendment. This page will offer insite to busker rights, as well as the local rules/ordinances Salem has in effect.
Buskers are protected under the First Amendment :(allegedly) guarantees freedom of speech, and courts have consistently recognized that busking—the act of street performing, including music, dance, and other artistic expressions for tips—is a form of protected artistic expression. This protection extends to the solicitation of donations.
The Fourteenth Amendment provides additional protections:
Due Process Clause: This clause ensures that states cannot deprive individuals of "life, liberty, or property, without due process of law." It's used to challenge vague or overly broad laws that could be arbitrarily enforced against buskers.
Equal Protection Clause: This clause guarantees that no state can "deny to any person within its jurisdiction the equal protection of the laws." This is used to challenge laws that treat buskers differently from other people or forms of speech, for example, by requiring a permit for a musician but not for a protestor or panhandler.
Buskers have a First Amendment right to use amplification in a public forum. The City of Salem has a legitimate interest in controlling noise. The legal balance is struck when a city's regulations are objective, based on decibel levels, and are not so restrictive that they render the performance inaudible or impractical.
Focusing on Derby Square, the noise ordinance during high traffic hours, is 78 db measured at 15ft away, so likely around 100-105db from 1 ft away. During October, all amplified sound is NOT allowed on Fridays, Saturdays, Sundays and holidays with exception to oct. 31st. Buskers can be fined 50 to 100 dollars per offense.
In the US, an absolute ban on amplification in public spaces is illegal, as it is an unconstitutional restriction on free speech. However, Salem is allowed to legally regulate amplified sound through "time, place, and manner" restrictions. These rules must be content-neutral and narrowly tailored to serve a significant government interest, such as preventing noise pollution. My question to you is, does it seem “content neutral” or “narrowly tailored” to ban all amplification in October?
Lionhart v. Foster (1999): In this case, a federal court ruled that a New Orleans noise ordinance with a 55-decibel limit was unconstitutional. The judge found that this level was so low that it would prohibit "most normal human activity," including a spirited conversation between two people, and therefore was not a "narrowly tailored" way to regulate noise. The court noted that there is "no more appropriate place for reasonably amplified speech than the streets and sidewalks of a downtown business district."
Did you know? In Salem a balloon artist, face painter, or caricaturist cannot put out signage regarding how much their art costs. The city is under the impression that once a service has a price, is considered vending.
In Bery v. City of New York (1996): The court held that visual art and expression is protected by the First Amendment. It struck down a New York City regulation that required artists to obtain a general vendor license to sell their work in public spaces. The court's reasoning was that the sale of one's own artistic creation is an expressive act, not a simple commercial one. This precedent has been used to protect buskers who also sell their original recordings or artwork.
In Davenport v. City of Alexandria, Virginia (1983) A judge ruled that a ban on all "business-related activities" on city streets was unconstitutional as it applied to busking. The court determined that street performing, even with the goal of earning money, was not a mere business transaction but a protected form of expression. This ruling reinforced the idea that busking cannot be regulated as if it were simply the sale of goods.
Harry Perry and Robert "Jingles" Newman v. Los Angeles Police Department (1997): The court recognized that the sale of art created by the performer is "so inextricably intertwined with the performance itself as to be an integral part of the protected whole." This precedent is vital because it establishes that the sale of a busker's own creative work is also a form of protected speech, not a simple commercial transaction subject to the same regulations as other vending.
As a Balloon Twister… All of my balloon art (complex and simple) are expressions and hand crafted to my audience. For kids, they can be given with care, and for adults, sometimes they are given with indifference, as a way of mocking the over commodification in the city. Regardless, the act of giving a balloon to another is not a mere exchange of goods and currency, but a message and experience that is considered protected speech.
Court Precedents “Busking Bans as Unconstitutional”:
Davenport v. City of Alexandria, Virginia (1983): A judge ruled that a ban on all "business-related activities" on city streets was unconstitutional as it applied to busking. The court recognized that busking is not a mere business transaction but a protected form of expression, and as such, it cannot be banned in the same way that commercial vending can.
Turley v. City of New York (1998): This case directly challenged New York City's complex and restrictive permit scheme for buskers. The Second Circuit Court of Appeals ruled that the city's regulations were unconstitutional because the permit process was so complex, difficult, and expensive that it acted as an effective ban on street performing. The court also specifically prohibited police from seizing performers' instruments, ruling that it was a violation of their constitutional rights. This case established that regulations must not be so burdensome that they stifle the very activity they are meant to regulate.
Friedrich v. Chicago (1985): A federal court in Chicago ruled in favor of street performers, granting an injunction against the city's enforcement of a ban on busking in certain areas. This ruling further established that cities cannot simply ban busking in public spaces that are traditional public forums, such as streets and parks. The courts have consistently held that a complete prohibition is a violation of the First Amendment.