February
2007
Buskers and street artists
battle Kansas City Council to perform in public spaces
Sign the Kansas City Street
Artists Petition online at:
http://www.petitiononline.com/KC1stAmd/petition.html
Summary: (NOTE: Some of the article links have
expired. Will update with links to copies of articles ASAP)
- Received
emails and calls from Stacey Krulewich
<stacey@ohwowballoons.com> and Laird A. Wilcox <scottsman62@yahoo.com> February 2007 about new
proposed ordinance banning of street performances in Kansas City over
the collection of donations and amplification. I sent emails back
outlining issues and list of possible legal help.
- Stacey
Krulewich <stacey@ohwowballoons.com> web site on Kansas
City battle: http://kcstreetart.blogspot.com/
http://www.kcstreetart.com
- Received email from Danny
Croman <dan_the_music_man2003@yahoo.com> another street
artist in Kansas City who uses amplification and filed many law suits
to protect his and others rights to perform in public spaces. The legal
challenge of the amplification ban from 11 PM-6AM in the Westport area
failed, but it still upheld First Amendment protection for music and
right to perform without amplification. Other issues such as a public
literature bans in area were resolved by the law suit See: ( W.D.
Mo.,1997. Croman v. City of Kansas City, Mo., 29 F.Supp.2d 587)
- Media Reports: issue has
received coverage in area newspapers and elctronic media
- March 5, 2007, Kansas
City Star editorial ON CIVIL LIBERTIES AS
I SEE IT: Panhandling proposal tramples the Constitution By
BRETT SHIRK (Brett Shirk is the executive director of the ACLU
of Kansas and Western Missouri) http://www.kansascity.com/mld/kansascity/news/opinion/16834362.htm
- February 28, 2007,
Kansas City Star editorial KC doesn't really
need another panhandler law The Kansas City Star http://www.kansascity.com/mld/kansascitystar/16798308.htm
- February 15, 2007,
Kansas City Star article "Council Committee Considers Panhandling
Restrictions - Street performers fear the crackdown threatens their
livelihood and the city’s vibrancy.
by DAVE HELLING and LYNN HORSLEY http://www.kansascity.com/mld/kansascity/16701337.htm
- KC city council
considers panhandler ban :http://kshb.com/kshb/nw_local_news/article/0,1925,KSHB_9424_5340009,00.html
- Kansas City Star: In
panhandler plan, logic goes begging by MIKE HENDRICKS http://www.kansascity.com/mld/kansascity/news/local/16730736.htm?source=rss&channel=kansascity_local
- Panhandler ordinance
faces opposition :http://kshb.com/kshb/nw_local_news/article/0,1925,KSHB_9424_5352729,00.html
- KMBC-TV article http://www.thekansascitychannel.com/news/11016936/detail.html
- University News at the
UMKC conducted poll on February 23, 2007 72% in favor of strret artists
when I viewed it. Link: http://www.unews.com/poll/index.cfm?event=displayPollResults
- Copy of Proposed Ordinance
posted on this site HERE
- Link to Kansas City Council http://www.kcmo.org/council.nsf/council/home?opendocument
- Copy of open public letter
"Common Sense and Panhandling" sent to Kansas City Council members,
area bar associations, arts organizations and media outlets posted on
this site HERE
- Kansas City Street Artists
Petition HERE
Online Version at: http://www.petitiononline.com/KC1stAmd/petition.html
- Robert A. Asher, Jr. and Bob
A. Parks letters and blog: http://www.argumentmachine.com/threads/
2007-Feb-15/114458/114458.html
- Another blog: http://forsythe4kc.com/2007/02/kc-says-no-to-street-performers.html
Open Public Letter to Kansas City
Council and Citizens:
Common Sense and
Panhandling
Freedom
of Religion does not cease because the plate is passed during services
and the minister receives a salary. Freedom of the Press does not cease
because the publication has a price on its cover, or paid
advertisements or the staff receives a salary. Freedom of Speech does
not cease because the radio station, political candidate or individual
asks for donations and receive a financial gain.
The US
Supreme Court has stated:
"The fact that the
particular advertisement in appellant's newspaper had commercial
aspects or reflected the advertiser's commercial interest did not
negate all First Amendment guarantees. The State was not free of
constitutional restraint because the advertisement involved sales or
"solicitations." Murdock v Pennsylvania 3l9 US l05, ll0-lll (l943), or
because appellant was paid for printing it, New York Times Co. v
Sullivan, 376 US at 266; Smith v California, 36l US l47, l50 (l959) or
because appellant's motive or the motive of the advertiser may have
involved financial gain, Thomas v Collins 323 US 5l6, 53l (l945). The
existence of commercial activity in itself is not justification for
narrowing the protection of expression secured by the First Amendment,
Ginzburg v United States 383 US 463, 474 (l966)."
Bigelow v Virginia,
421 US 809, 8l8 (l974) http://laws.findlaw.com/us/421/809.html
"Soliciting
financial support is undoubtedly subject to reasonable regulation but
the latter must be undertaken with due regard for the reality that
solicitation is characteristically intertwined with informative and
perhaps persuasive speech seeking support for particular causes or for
particular views on economic, political or social issues, and for the
reality that without solicitation the flow of such information and
advocacy would likely cease."
Schaumburg v
Citizens for Better Environment, 444 U.S. 620 (1979). http://laws.findlaw.com/us/444/620.html
The
first newspapers were written in verse and sung and sold as broadsides
including broadsides written by Ben Franklin. Sam Adams and the Sons of
Liberty sang political parodies at public demonstrations while seeking
support for the American Revolution cause. Thomas Paine wrote and sold
copies of Common Sense on the colonial city streets and donated funds
from the sales to support the Revolutionary troops. The Kansas City
Council would not only ban these activities, they would fine these
Fathers of the American Revolution and send them to jail.
Jazz,
the blues and tap dancing were all invented and crafted on the streets
of New Orleans, Saint Louis, Chicago, Memphis and even Kansas City
where many of the first great country blues artists practiced their
trade. Irving Berlin to George Burns, Paul Simon to James Taylor, Blind
Lemon Jefferson to Louis Armstrong, W.C. Fields to Robin Williams,
Tracy Chapman to the Violent Femmes have all developed their talents
and audiences on the street. The Kansas City Council would fine all
these artists and send them to jail.
Music
is protected under the First Amendment as a form of expression and
communication. The US Supreme Court has stated:
Music is one of the
oldest forms of human expression. From Plato's discourse in the
Republic to the totalitarian state in our own times, rulers have known
its capacity to appeal to the intellect and to the emotions, and have
censored musical compositions to serve the needs of the state. See 2
Dialogues of Plato, Republic, bk. 3, pp. 231, 245-248 (B.
Jewett’s translation, 4th ed. 1953)
("Our poets must sing in another and a nobler strain"); Musical Freedom
and Why Dictators Fear It, N.Y. Times, Aug. 23, 1981, section 2, p. 1,
col. 5; Soviet Schizophrenia toward Stravinsky, N.Y. Times, June 26,
1982, section 1, p. 25, col. 2; Symphonic Voice from China Is Heard
Again, N.Y. Times, Oct. 11, 1987, section 2, p. 27, col. 1. The
Constitution prohibits any like attempts in our own legal order. Music,
as a form of expression and communication, is protected under the First
Amendment. In the case before us the performances apparently consisted
of remarks by speakers, as well as rock music, but the case has been
presented as one in which the constitutional challenge is to the city's
regulation of the musical aspects of the concert; and, based on the
principle we have stated, the city's guideline must meet the demands of
the First Amendment.
Ward v. Rock Against
Racism, 491 U.S. 781, 790, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989)
http://laws.findlaw.com/us/491/781.html
The
Kansas City Council apparently does not agree with the Supreme Court
that music and the arts are protected by the First Amendment and also
thinks it does not have to comply with current legal definitions and
standards. The Kansas City Council sees no "intrinsic value" in its
panhandling definition to singing of the National Anthem, religious
hymn or any other works of art.
The
First Amendment does not say you have to be "good." The First Amendment
lets the public make up its own mind what is "good" or what has
"intrinsic value." The Kansas City Council asserts it has the
power to make that subjective decision for every citizen. The Kansas
City Council is not just abridging the First Amendment Rights of the
artists who seek to share their views in a public forum, but First
Amendment Rights of every citizen who chooses to assemble, listen and
support these artists.
The
Kansas City Council is also using exaggerated and nonexistent safety
issues as an unscrupulous use of fear to justify these unconstitutional
infringements. How many injuries and deaths were caused by street
performances over the past decade compared to cars and trucks
accidents? What is the arrest record numbers caused by street
performances over the past decade compared to people arrested for being
intoxicated? Will the Kansas City Council ban automobile travel and
alcohol sales on weekdays from 5 pm to 7 am plus weekends because
Kansas City's own public records will over whelming prove these
activities are far more dangerous than street performing? Would the
Kansas City Council ban the distribution of campaign literature because
the merchant association had some public complaints on litter and
claimed people might trip on discarded pamphlets?
The
First Amendment is not a right to whisper. The Kansas City Council
amplification ban essentially silences the artists where background
noise levels from cars, trucks, buses, air conditioners, fans and
planes regularly exceed 80 db and drowns out normal voice levels and
many instruments. New Orleans street performers in Lionhart v. Foster
100 F.Supp.2d 383 (E.D.La., 1999) LEXIS 17059 won a federal case that
declared sound level of 55db to be unconstitutional. The judge refereed
to cases which gave amplification First Amendment protection and cited
cases in Houston: Reeves v. McConn, 631 F.2d at 381 n. 1. The court
noted "there is probably no more appropriate place for reasonably
amplified speech than the streets and sidewalks of a downtown business
district." District of Columbia Circuit struck down a federal
regulation, which prohibited the playing of musical instruments at a
level higher than "60 decibels measured on the A-weighted scale at 50
feet."(Doe, 968 F.2d at 89-90, the last case also included the playing
of drums in front of the White House) New Orleans artists also received
a preliminary injunction restraining order on May 31, 1996 when the
city tried to impose a inaudible at 25 foot requirement Case 96-1869
(E.D.La.1996) ROSELYN LIONHART, et al versus CITY OF NEW ORLEANS, et
al; 1996 U.S. Dist. LEXIS 18903 (December 13, 1996).
Electronic
music is also protected as a First Amendment form of expression. In
Casey v. City of Newport 308 F.3d 106. 110 (1st. Cir. 2002):
"...amplifiers are
also used to create new "messages" that cannot be conveyed without
amplification equipment. Amplification enables performers to boost the
relative volume of quiet instruments, such as the bass and the lower
registers of the human voice, [*29] and to adjust the tonal qualities
of voices and instruments without necessarily increasing the overall
volume of the performance.
Much
modern music simply cannot be performed without the use of amplifiers.
Thus the ban on amplification has a direct and immediate effect on the
expression at issue. The record therefore does not support the district
court's conclusion that appellants "could still convey their . . .
messages" without amplification. Without amplification, some of the
messages are not conveyed at all."
Cars
have both gasoline powered generators and batteries that provide
electricity for very loud amplified sound systems. Kansas City
Councilor Fairfield and the Kansas City Council would never ban all
cars from these areas because of the abuse of a single person with a
loud car radio. The public would never support it.
"A free society
prefers to punish the few who abuse rights of speech after they break
the law than to throttle them and all others beforehand."
Southeastern Promotions,
Ltd. v Conrad, 420 US 546, 559 (l974). http://laws.findlaw.com/us/420/546.html
The
attempted ban of panhandling by the Kansas City Council is like reading
a Victorian era Charles Dickens book when poverty was criminalized. I
can only humbly suggest the Kansas City Councilors and Mayor resign and
spend the next four years working as volunteers at a Kansas City
homeless shelter or go to Mother Theresa's charity homes in India to
gain full knowledge of the scope and complexity of the poverty issues
involved.
The
best way to expose the hypocrisy of the proposed ORDINANCE NO. 070180
is to insert the author's names and occupations as the subject to be
prohibited. The Kansas City Council would never ban their own rights to
speak through amplification and "panhandle" for campaign contributions
between the hours of 5:00 p.m. and 7:00 a.m. Monday through Friday and
all day Saturday and Sunday, and prohibiting, in areas commonly known
as the Country Club Plaza, Westport Shopping District, South Loop Area
of the Downtown, and the Zona Rosa Shopping District; and providing for
a penalty of a fine of $500.00 and/or imprisonment for not more than
six months.
I assert not only would the
document never have been written and it would also never have been
brought to a public hearing for consideration. It is so much easier to
trample on the rights of the poor and powerless. The arrogance of power
and money by the Kansas City Council is on national display.
Stephen H. Baird
Street Arts and Buskers
Advocates
Community Arts Advocates, Inc.,
PO Box 300112, Jamaica Plain, MA 02130-0030
Telephone: 617-522-3407 Email:
info@communityartsadvocates.org Web:
http://www.communityartsadvocates.org
Street Arts and Buskers
Advocates: Celebrating self-expression as a basic human right essential
for the healthy growth of youth, individuals and communities
ORDINANCE NO. 070180
Enacting
a new section 50-8.5, Code of Ordinances, entitled Prohibitions in
special areas prohibiting the use of sound amplification generated by
gas-powered generators or batteries larger than nine volts, prohibiting
panhandling between the hours of 5:00 p.m. and 7:00 a.m. Monday through
Friday and all day Saturday and Sunday, and prohibiting panhandling
within five feet of any vehicular traffic lane, in areas commonly known
as the Country Club Plaza, Westport Shopping District, South Loop Area
of the Downtown, and the Zona Rosa Shopping District; and providing for
a penalty of a fine of $500.00 and/or imprisonment for not more than
six months.
WHEREAS,
the Country Club Plaza is a historic section of the City of Kansas
City, Missouri, that is a destination for residents and visitors to the
City. The Country Club Plaza attracts millions of visitors each year.
The hotels, restaurants and shopping opportunities in the Country Club
Plaza provide significant tax revenue for the City of Kansas City and
are a part of its economic base. The vitality of the Country Club Plaza
is integral to the continued economic success of the City of Kansas
City, Missouri.
WHEREAS,
the Westport Shopping District is a historic section of the City of
Kansas City, Missouri that is a destination for residents and visitors
to the City. The vitality of the Westport Shopping District is integral
to the continued economic success of the City of Kansas City, Missouri.
WHEREAS,
the City of Kansas City, Missouri has invested hundreds of millions of
dollars in the South Loop entertainment district, the Sprint Center
arena and the Convention Center in downtown Kansas City. Given the
Citys investment, the prosperity of this area of downtown is integral
to the continued economic success of the City of Kansas City, Missouri.
WHERAS,
the Zona Rosa Shopping District is a destination for residents and
visitors to the City. The vitality of the Zona Rosa Shopping District
is integral to the continued economic success of the City of Kansas
City, Missouri.
WHEREAS,
the City of Kansas City, Missouri has a significant interest in
promoting the aesthetics of the Country Club Plaza, Westport Shopping
District, South Loop and Zona Rosa Shopping District as a tourist
attractions, eliminating nuisance activity therein, and providing
citizens with a safe, pleasant environment in which to enjoy the
benefits of the Country Club Plaza Westport Shopping District, South
Loop and Zona Rosa Shopping District.
WHEREAS,
the proliferation of panhandlers within the Country Club Plaza Area,
Westport Shopping District, South Loop and Zona Rosa Shopping District
is detrimental to the aesthetics of each area, creates a nuisance
therein, and prevents citizens from enjoying a safe, pleasant
environment.
WHEREAS,
the use of gas and battery powered sound amplification devices on
crowded public sidewalks within the Country Club Plaza, Westport
Shopping District, South Loop and Zona Rosa Shopping District presents
a significant public health and safety issue. NOW, THEREFORE,
BE
IT ORDAINED BY THE COUNCIL OF KANSAS CITY:
Section
1. That a new section 50-8.5, Code of Ordinances, entitled Prohibitions
in special areas is enacted to read as follows:
Sec.
50-8.5. Prohibitions in special areas.
(a)
Country Club Plaza Area, Westport Shopping District Area, South Loop
Area and Zona Rosa Shopping District Area.
(1)
Country Club Plaza Area. The area shown on
Exhibit A attached hereto and generally described as the area between
46th Terrace on the north, J.C. Nichols Parkway on the east, Ward
Parkway on the south and Jefferson on the east, shall be known as the
Country Club Plaza Area. The Country Club Plaza Area includes the
public areas on both sides of the named boundaries.
(2)
Westport Shopping District Area. The area shown
on Exhibit B attached hereto and generally described as the area
between 39 th Street on the north, Main Street on the east, Westport
Road to Pennsylvania Avenue to 40 th Street on the South and Southwest
Trafficway on the West, shall be known as the Westport Shopping
District Area. The Westport Shopping District Area includes the public
areas on both sides of the named boundaries.
(3)
South Loop Area. The area shown on Exhibit C
attached hereto and generally described as the area between 12 th
Street on the north, Oak Street on the east, Truman Road on the south
and Wyandotte Street on the East, shall be known as the South Loop
Area. The South Loop Area includes the public areas on both sides of
the named boundaries.
(4)
Zona Rosa Shopping District Area. The area shown
on Exhibit D attached hereto and generally described as the area
between Missouri Highway 152 on the north, Interstate 29 on the east,
to Barry Road, to Northwest Prairie View Road, to Northwest 86 th
Terrace and to North Congress Avenue on the west, shall be known as the
Zona Rosa Shopping District Area. The Zona Rosa Shopping District Area
includes the public areas on both sides of the named boundaries.
(b)
Sound amplification devices. No person shall use
any gas powered device, or any battery powered device using batteries
larger than 9 volts, amplifying speech or sound, in or upon any public
street, sidewalk, alley, park or other public place within the Country
Club Plaza Area, Westport Shopping District Area, South Loop Area, or
Zona Rosa Shopping District Area.
(c)
Panhandling.
(1)
As used in this section, panhandling means any solicitation made in
person upon any public street, sidewalk, alley, park or other public
place, in which a person requests an immediate donation of money or
other gratuity from another person, and includes but is not limited to
seeking donations:
(i)By
vocal appeal or for music, singing, or other street performance; and,
(ii)
Where the person being solicited receives an item of little or no
monetary value in exchange for a donation, under circumstances where a
reasonable person would understand that the transaction is in substance
a donation.
(2)
It shall be unlawful to engage in an act of panhandling during the
hours of 5:00 pm to 7:00 am, Monday through Friday, or at any time on
Saturday or Sunday, within the Country Club Plaza Area, Westport
Shopping District Area, South Loop Area, or Zona Rosa Shopping District
Area.
(3)
It shall be unlawful to engage in an act of panhandling, at any time,
from the designated median or within five (5) feet of any vehicular
traffic lane of any boulevard, parkway, or trafficway, within the
Country Club Plaza Area, Westport Shopping District Area, South Loop
Area, or Zona Rosa Shopping District Area.
(d)
Penalty. Any person violating the provisions of
this section shall, upon being found guilty thereof, be punished by a
fine of not less than $500.00 or by imprisonment for not more than six
months, or by both such fine and imprisonment.
_________________________________
William
Geary
Assistant
City Attorney
Kansas City Street Artists Petition
JPEG
Version HERE
PDF Version HERE Online Version at: http://www.petitiononline.com/KC1stAmd/petition.html
Public
performances and art on sidewalks, plazas and parks are an important
cultural asset to Kansas City and the community, and most importantly
are an historic expression of constitutional First Amendment Rights
The Kansas City Council is
considering a new ordinance with discriminatory and unreasonable new
restrictions on street artists.
This unconstitutional proposed
new ordinance will:
• Greatly limit
locations and hours of expression including evenings after 5 PM and
weekends
• Totally eliminate
the public's right to financially support First Amendment expression
• Ban most, even
modest amplification
We, the undersigned, support
the tradition of diverse artistic expression in public spaces. We
petition the Kansas City Council to reject this unconstitutional
proposed ordinance.
Signature Name Address Email
The Street Arts and Buskers
Advocates will collect and send the petitions to Kansas City Mayor's
Office, Kansas City City Council's Office,
Attorney General's Civil Rights
Office, national, state and local media outlets, internet web site, as
well as used in public forums.
Street Arts and Buskers
Advocates, PO Box 300112, Jamaica Plain, MA 02130-0030 Telephone:
617-522-3407
Email: info@communityartsadvocates.org Web site: http://communityartsadvocates.org/saakansascity.html
