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Street musicians, one; Boston Police, zero

Less than four months after Boston street performers filed a federal civil-rights lawsuit against the city citing harassment under the police department’s street-entertainment-licensing requirements, the city appears to have shouted, "Basta!" This is hardly surprising, since, as we noted in these pages ("Killjoy Was Here," News and Features, September 3, 2004), the BPD’s licensing restrictions on street performances were both anachronistic and patently unconstitutional. (Consider, for example, the requirement that a "female licensed musician [be] accompanied by an adult male licensed itinerant musician.") We predicted that the regulations were "not likely to play well in a 21st-century court."

Well, they didn’t. On December 23, US District Court judge Nancy Gertner held a status hearing at which she announced that the city and the police had voluntarily stopped enforcing the regulations, had agreed to repeal them, and were preparing a new licensing scheme that adheres to the First Amendment.

It was perhaps an inevitable concession, but the timing caught many off guard: after decades of police harassment, why the sudden turnaround? It’s possible that saner minds in the city’s hierarchy prevailed once the lawsuit lent the issue some urgency. Or perhaps the city’s lawyers took note of a federal-appeals-court ruling in Boston four weeks earlier, in a lawsuit brought by the ACLU of Massachusetts, that invalidated the MBTA’s prohibition against posting marijuana-legalization ads in T stations and subway cars. In that case, the federal courts still must calculate how much money the city owes the plaintiffs, and what proportion of the plaintiff group’s legal fees must be paid by the city (under federal law, the losing side in a civil-rights case has to pay the prevailing side’s legal fees and costs). If the MBTA ruling had any influence on the city’s decision to throw in the towel in the street-musicians case, then money was clearly an issue.

Whatever the reason, the city’s decision to revoke the old street-performer regulations significantly altered the tenor of the legal proceedings. Judge Gertner found no need to issue an injunction against the regs, or to invalidate them, given the city’s unconditional surrender. "So, you’ve won," she said to the performers’ pro bono lawyers, from the Boston law firm of Testa, Hurwitz & Thibeault. In legal parlance, the question of whether to issue an injunction had become "moot."

Plaintiffs’ lawyer Jason A. Duva asked Gertner to issue an injunction anyway, and Stephen H. Baird, founder of the nonprofit group Community Arts Advocates — the formal plaintiff in the case — worried aloud that news of city attorney Thomas R. Donohue’s concession might not reach the beat cops. But Donohue assured the court that Police Commissioner Kathleen M. O’Toole would spread the word that the regulations were a dead letter in time for the busy Christmas and New Year’s street scene, and Gertner accepted those assurances. The judge also set another status conference for January 26 to determine whether the city has by then formally repealed the old regulations and replaced them with a licensing arrangement more in tune with modern constitutional standards.

So the fat lady hasn’t sung quite yet, but it’s pretty clear that she’ll be allowed to do so shortly — in the many public squares and parks of Boston. Hub citizens will be able to see and hear the vibrant performances already enjoyed for years by denizens of cities such as Cambridge and Somerville. Still, it’s disheartening that it took a lawsuit to force the city to recognize what should have been immediately obvious: that its licensing requirements didn’t have a chance of surviving in a free society.

Issue Date: January 7 - 13, 2005
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