Celebrating self-expression as a basic human right essential for the

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Stephen H. Baird, Founder and Executive Director

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Stephen Baird 2007


Provincetown, Massachusetts

UPDATE: August 27, 2007: Attorney Marc LaCasse, Esq., The McCormack Firm, One International Place, Boston, MA  02110 Tel. (617) 951-2929 www.mccormackfirm.com reached a temporary settlement with Provincetown through the threat of a lawsuit. The town will not ticket or enforce the overbroad noise restrictions until it is reviewed and revised at the next town meeting in November. Marcia Mello, who is a Delta blues and singer, received three tickets totaling $150 which were dismissed. PDF copy of settlement is HERE.

Articles on issue:

There’s a street fight brewing. -- Street performers are complaining that a recently expanded noise bylaw is being unfairly applied to them and that the actions of some local merchants qualify as harassment. By Steve Desroches, The Cape Codder, Thu Aug 23, 2007 Provincetown -http://brewster.wickedlocal.com/article/20070823/News/308239491 

Copy of  article on settlement in Lawyers Weekly (http://www.lawyersweekly.com) Hearsay section by Barbara Rabinovitz below click image to see larger PDF version.


Image of Article in Provincetown Banner on legal challenge of vague noise ordinance by Marcia Mello with legal help from Marc LaCasse

The legal battle in Provincetown has continued for many, many years.  In November 2006 they began to require performers to be requlated by a very poorly written noise ordinance that is blatently over broad and publically admittedly to be selectively enforced.  I spent several days in Privinctown measuring sound levels.  Businesses, air conditioners, exhaust fans, cars, trucks, motor cycles, trolley bell, night club and art gallery music and "a flock of sea gulls" all could be heard over 50 feet away.  Even the town's own street sweeper could be heard 5-6 blocks and over 300-600 feet away.  However, it seems street performers are the only folks who receive citations and fines.  Much of this overt  discrimitory enforcement is instigated by a small number of merchants who are trying to control the area around the town hall as a private mall.

Attorney Marc LaCasse, Esq., The McCormack Firm, One International Place, Boston, MA  02110 Tel. (617) 951-2929 www.mccormackfirm.com was in Provincetown and happened to witness the police stopping a street performance of a friend, Victor Sandman, over Memorial Day Weekend.  Marcia Mello, a Provincetown blues guitar player and singer, was also stopped during the same time period.  She has been one of the street artists subjected to the discrimitory enforcement of the noise ordinance over the past few years.

Attorney David E. Cole, Foley Hoag, LLP, Seaport World Trade Center West, 155 Seaport Blvd., Boston, MA 02110-2600 Tel 617-832-3005  www.foleyhoag.com helped stop the enactment of another set of over broad reguations in Septmeber 2005. The 2004 issues are outlined below.

I expect this issue will not go away until the town and the merchants are confronted in court and pay damages.  Future updates will be posted. -- SB July 2007




(Click on images to see larger verisons)

Clown, mime and spoken word artist Ada Hann has performed in Provincetown since 1991. In August 2004, she has received two tickets and threats of arrest by the Police Chief. The Provincetown Street Performers by-laws are similar to the Cambridge Street Performance Ordinance, but has several additional severe restrictions that curtails and stops performances. The two most devastating restrictions are the ban of performances from the Town Hall Park from 9 AM-5 PM on week days. The Town Hall Park is the most important historic First Amendment area in the town. A reason given for prohibiting street performers is the availability of other public areas. The Following US Supreme Court statement has been frequently quoted in numerous lower court decisions:
"One is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place."
Schneider v State 308 US l47, l63 (l939).

The by-laws also bans the sale of street artists art work and music recordings. Recent court decisions give protection for the rights of artists to sell their art work and creations. Can Provincetown ban the public distribution of the Bible when it is published on a CD?

Over broad and vague regulations often lead to selective enforcement. Ada Hann received a ticket for performing 100 feet away from the town hall in the same location other artists are allowed to perform. A second ticket was issued for blocking the sidewalk, an often abused discretionary power used by police to harass people they do not like. Both tickets were issued without any attempt to abide by the 9-4-7 section of the Street Performance By-Laws written to protect artists from arbitrary arrest or fines for attracting a crowd. The First Amendment is superfluous if there is not a crowd.

"There is a First Amendment right to peacefully assemble to listen to speakers of one's choice, which may not be impaired by state legislation any more than the right of speaker may be impaired."
Snyder v Board of Trustees of University of Illinois 286 F. Supp. 927, 928, (ND Ill. l968).

"'The Supreme Court has recognized that hearers and readers have rights under the First Amendment. Lamont v Postmaster General 38l US 30l 85 S. Ct. l493 l4 L. Ed. 2d 398 (l965). What is implicit in the majority opinion is made explicit in the concurring opinion of Justices Brennan and Goldberg: [T]he addressees assert First Amendment claims in their own right: they contend that the Government is powerless to interfere with the delivery of the material because the First Amendment necessarily protects the right to receive it."

Brooks v Auburn University 296 F. Supp. l88, l92 (MD Ala. l969).

"The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers."

Lamont v. Postmaster General 381 US 301, 308 (1965) (Brennan, J., concurring)

(Click on images to see larger verisons)

There are people walking in the street of Provincetown all the time. Crowds waiting for tables at the Lobster Pot and other area restaurants often block the sidewalks. I suspect the Provincetown Banner and Cape Cod Times could find archived photographs of the majority of Provincetown public officials walking in the streets. Provincetown should consider banning cars during the summer season and ticketing people for jay walking to mitigate the public safety concerns.

The courts have repeatedly said public officials can not ban leafleting because people littered the unwanted flyers. The city was free to arrest the individuals who littered. This is an analogous situation. Provincetown can not stop the First Amendment activity of the street performers. The town is free to ticket the jay walkers. Maybe the Police Chief will even ticket the public officials who jay walk or the crowds who block the side walk at area restaurants, because he always enforces the laws evenly and fairly.

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