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San Diego doesn’t make it easy for people who want to perform in public for tips. In this episode of Culturecast, street performers and a civil rights lawyer sympathetic to their cause explain why they think San Diego’s permitting system violates their First Amendment rights.
San Diego doesn’t make it easy for people who want to perform in public for tips.
A group of artists plans to show up to the March 14 City Council meeting and demand better treatment for street performers.
Local buskers – artists and musicians who take to city streets and sidewalks to perform their craft in hopes of earning cash from passersby – say they’re too often at odds with the San Diego Police Department. Many of them have signed an online petition asking the City Council to do something about it.
One longstanding issue for buskers is the permitting system in Balboa Park.
On one Saturday morning every month, performers are required to show up at an administration building in the park for a lottery system that determines who can perform.
The park only gives out a certain number of permits to each type of performer – they don’t want too many balloon animal artists, sketch artist or magicians in the park at any one time. And the permits that musicians get spread them out through the park so they don’t have to compete with one another’s sounds.
Some buskers like the permitting system – they say it keeps things organized.
Big Slim, a musician who’s been singing and playing guitar in Balboa Park for years, tolerates the system, but also thinks it’s unconstitutional.
“It is, I mean, come on face it – it’s restricting freedom of speech,” he said.
At least one judge agrees. A federal court in Los Angeles ruled a law restricting buskers along the Venice Beach boardwalk was a violation of the First Amendment.
In his ruling, the judge said the system did no better at managing conflicts between buskers than the old ‘first come, first served” method.
Slim thinks first come, first served would work out just fine in Balboa Park. He thinks the performers who do things people in the park enjoy will end up sicking around.
“And the other people will drop out after awhile,” he said.
Buskers also have to deal with people, typically nearby business owners, complaining to the police.
Robert Burns, a lawyer and bagpiper who lives in Ocean Beach and can often be found playing his music on San Diego sidewalks, said police officers respond to the complaints by shutting buskers down, whether they’re actually breaking any laws or not.
One of Burns’ favorite busking spots is downtown by Petco Park, especially when there’s a game or special event that brings in foot traffic.
Over the summer, though, he said he was told by a San Diego Police officer that he couldn’t play his bagpipe there. Burns said the officer cited a city ordinance that says in San Diego’s “ballpark district,” no one can put on an exhibition, show, performance, lecture or concert without written consent from the mayor.
Burns said the city ordinance clearly violates his free speech rights.
“[The ordinance] says basically in the ballpark district nobody can make any kind of noise, amplified or unamplified – any kind of noise,” he said. “It’s clearly unconstitutional.”
Christopher Morris, a civil rights attorney, read the text of the city ordinance the officer used to shut down Burns’ bagpipe playing and said it didn’t look like it would pass constitutional muster.
“It’s constitutionally over-broad, as it would include many protected free speech-related activities,” he said. “If this provision were challenged in court, I don’t think it would be upheld.”
Burns didn’t end up getting a ticket after his encounter with the police officer at Petco Park, though, so he won’t be heading to court to resolve the matter. Instead, he filed a complaint with the Community Review Board on Police Practices, an independent oversight body that investigates complaints against SDPD officers.
For over 10 years, William Dorsett has been setting up in the same spot in front of the Anthony’s Fish Grotto restaurant on the embarcadero, ripping up palm leaves and folding them into roses, crosses, scorpions birds and other miniature sculptures. He also sells spray-paint art.
Dorsett’s become one of the de facto leaders of local street performers, in part because he runs a Facebook group called San Diego Buskers. He often shares posts about the rights of street performers and fields complaints from local buskers who’ve had encounters with officers.
“People just keep emailing me all the time saying, ‘Hey I get harassed, what can I do?'” he said.
Dorsett has tried to do something about what he said is inconsistent and unfair treatment of street performers by police officers.
Four years ago, he and other local buskers took their troubles to City Council and then the mayor’s office. Bob Filner was mayor at the time, and he actually did step in to help by issuing a letter – essentially a permission slip – to one busker in Ocean Beach who had been told by police he couldn’t sell his handmade goods by setting up a booth near the sea wall.
Dorsett said when the mayor got involved, Voice of San Diego and other media reports about the issue resulted in relaxed policing for years.
But, he said, things recently started getting bad again. He said his friend Silver Man – a guy who covers himself in silver paint and pretends to be a statue only to move when passersby least expect it – got a $1,000 citation for performing in front of the Convention Center during Comic-Con last year.
And Dorsett himself got a ticket last year at the Adams Avenue Street Fair. The ordinance the police officer cited was 22.4037 – interfering with a special event.
Dorsett and Silver Man are both taking their tickets to court. Dorsett said most of the time the tickets end up getting thrown out by a judge who recognizes their activities are protected by the First Amendment.
Dorsett said he’s tired of police officers using obscure city ordinances against street performers, and he doesn’t think street performers should have to waste their time in court. He’s the one who launched an online petition and is organizing the busker appearance at the City Council meeting. The petition asks the city to make changes to its municipal code by adding a specific section that defines what a busker is and what they’re allowed to do. He thinks the clarity will help the officers with enforcement.
“We’ll all come up before City Council and give them the petition along with all the court cases so they have fair warning that if they don’t change the law then I plan on seeking out counsel,” Dorsett said.
Neither the city or the police department responded in time to requests for comments on this story.
But Morris, the attorney, said he doesn’t think there’s enough of a pattern of police harassment or illegal enforcement against buskers for a lawsuit against the city.
He also said municipal code changes take a long time and are unlikely, and that the buskers would have better luck asking the police department to adopt a set of enforcement guidelines for buskers.
To resolve the Balboa Park permitting issue, he said, buskers could force the courts to weigh in.
“I keep telling the buskers to get arrested,” Morris said.
He said if a busker without a permit got arrested in Balboa Park, it would likely end in a court case that would find the system unconstitutional.
Another less dramatic path, he said, would be if the city did away with the permitting process.