On the same day the ACLU of Indiana celebrated the first victory in the fight to legalize same sex marriage in Indiana, the legal services organization filed a lawsuit against the city of South Bend challenging the city’s licensing guidelines for street performing, or busking.
The complaint was filed on behalf of South Bend resident Rick Peden, a sidewalk performer who plays the guitar and does an improvisational routine. Peden and the ACLU of Indiana claim South Bend’s ordinance is unconstitutional because of its limits on street performances to only designated areas of the city.
Busking isn’t an uncommon practice in Indiana, but it isn’t widely spread either. Busking is widely celebrated in Fort Wayne (and will be discussed coming up) while in Indianapolis, the jury is still out on its acceptance and popularity. Busking was seen everywhere when the Circle City hosted Super Bowl XLVI in 2012. The artform continued for the IndyFringe Festival later that same year, with Fringe hosting two “battles” to select the best performers for the festival as well as continued training.
The regulations for buskers in South Bend reside in Chapter Four of the city’s Municipal Code which deals with licenses. The code requires buskers to obtain a permit that is renewed annually at a cost of $20 per year. The rules limit the performers’ “stage” to within the Central Business and Entertainment Area and separates buskers by a minimum of 50 feet. Performance times are limited to Mondays through Thursdays from 8:00 a.m. to 9:00 p.m. and from 8:00 am to 11:00 p.m. on Friday through Sundays. And any special event taking place in the designated busker territory that utilizes the sidewalks takes precedence over the street performers, pushing them out on to the street, figuratively speaking.
The ACLU of Indiana contends the statute violates the First and Fourteenth Amendments of the U.S. Constitution.
"Courts have long held that entertainment-whether in the form of books, movies or performers on public sidewalks-is protected by the First Amendment," said Gavin M. Rose, ACLU of Indiana staff attorney in a press release. "South Bend is failing to show due regard for that indisputable fact."
Ironically, the busking ordinance was created to validate the craft in the hopes of attracting buskers to the downtown area. The ordinance was drafted by First District Councilor Tim Scott, a Democrat currently serving his first term. Although Scott refused to grant NUVO an interview discussing his intent behind the ordinance, several media reports published at the time the proposal was being considered quote Scott as saying he wanted to separate busking from panhandling as a sanctioned and legal activity. The South Bend Tribune reported Scott developed the idea following a conversation with local banjo players about the lack of regulations making the art of street performing legal. Various media reports also indicate Scott drafted the ordinance with input from Downtown South Bend Inc., a private/public partnership with the city designed to promote growth and activity in the city’s downtown district.
Not all buskers are created equal
As South Bend was reacting to the ACLU’s complaint, the city of Fort Wayne was gearing up to welcome buskers from near and far for its annual festival. Buskerfest was created in 2010 by Fort Wayne’s Downtown Improvement District (DID) and its current president Bill Brown back when he was an Allen County Commissioner. The festival, held every year at the end of June, invites buskers from around the country to show off their talents in the streets of downtown Fort Wayne. Veteran buskers also give workshops and training for local buskers to develop and improve their craft. Brown, with the DID, modeled Buskerfest after a similar festival held in Toronto. “[We] really kind of wanted to emphasize that it is a performing art,” said Brown.
It was Brown who brought busking to the attention of Fort Wayne and Allen County officials as something that wasn’t allowed according to their code, but could be something unique to bring tourism dollars to the area. Local officials eventually changed their ordinances to separate busking and panhandling in its language. “You can panhandle,… [but] it’s about being aggressive. You can’t be aggressive or touch,” says Brown. “So we feel like we’ve struck a good balance between the ability to perform in the street in the right-of- way from the whole panhandling piece.”
Fort Wayne’s ordinances on the issue are much in line with Indiana Code regarding panhandling. State law defines buskers as panhandlers while Fort Wayne separates the two. Indiana Code defines a panhandler as someone who asks for money or something of value on the street or in a public place or in exchange for performing music, singing, or any other type of performance. State Law lists several restrictions for panhandlers such as no soliciting after sunset and before sunrise, at a bus stop, at a restaurant sidewalk table, at an ATM or bank entrance, and a multitude of others.
Brown recognized the fine line that exists between panhandlers and buskers. He said for buskers to be taken seriously there is a level of courtesy involved as well as a presentation aspect to their level of performance.
“I will have to say for context, I was at the [Indianapolis] 500 last year in 2013 and I was sort of disappointed in that crowd stream, there were some people that were in dirty costumes and people that were kind of a mess and they were playing saxophone and things like that,” said Brown. “So it is kind of tricky because there is a big difference [between busking and panhandling] and that is the challenge.”
Brown does attribute the level of success that buskers have in Fort Wayne with the sense of community that exists in the city and the overall acceptance of the craft that he and DID have created. “It is very European,” says Brown. “And for really good performers it can be a very lucrative business and career.”
Panhandling vs. Busking
While Fort Wayne and South Bend have gone through great lengths to separate buskers from panhandlers, the two remain lumped together in Indianapolis. Republican Councilor Jeff Miller said Indianapolis currently makes no distinction between forms of free speech, so busking and panhandling are together in the city’s overall definition of solicitation. Miller co-authored the last ordinance proposal addressing panhandling with Democrat Councilor Vop Osili.
The proposal was met with a lot of opposition from buskers in the Indy scene. The Indianapolis Acoustic Music Meetup created an online petition through Change.org to gather support opposing the proposal. The group stated on the petition they felt the proposal mislabeled street performers as panhandlers and misrepresented them to the public.
The measure would have restricted panhandlers from soliciting within 50 feet of several areas including marked crosswalks, ATMs, banks or check cashing businesses, parking meters and pay stations, the entrances/exits of restaurants or the service area outdoor cafés, and many others.
The proposal passed out of committee last winter, but was kicked back to committee in January because some council members agreed it was too restrictive for buskers and charities.
Miller said his concern is and continues to be public vulnerability, even in cases of passive solicitation, where the public could be vulnerable based on how close that solicitor is. Back in January, Miller stated that he might consider some exemptions for certain designated cultural districts like Broad Ripple, Mass Ave, and the Cultural Trail.
However, a proposal has not yet been re-introduced and Miller said he was uncertain about the timing. According to the clerk for the city-county council, the proposal will fall off of the calendar if no action is taken by the council’s full meeting August 18.
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