Purpose
of this Guide | Some History | Your
Rights & Responsibilities | Court Decisions in
your Favor
The Transit Police | Transit
Police Fact Check | Station Managers | Music
Under New York | Legal Assistance
Performing on the Streets and in the Parks |
Our Views | What do You Think?
| Confrontation Sheets | Sources
| Special Thanks
Know Your Rights!
A Guide for Subway Musicians & Other Performers
(revised edition, © 2004)
Prepared
by Susie Tanenbaum
with
The Street Performers Advocacy Project and City Lore
You have a right to perform in the subways, on the sidewalks and in the parks of New York City. The purpose of this guide is to clarify your rights and responsibilities as public space performers, especially when you are setting up underground. We also hope that officers in the New York Police Department, Station Managers, and hearing officers will find this guide useful when they are implementing New York City Transit regulations permitting subway performances.
The Street Performers' Advocacy Project was formed in 1996 as a coalition of musicians and activists who were united in their belief that street and subway performers make a valuable contribution to this city. They decided that a guide would advance their goal of encouraging spontaneous expression and a sense of community whenever and wherever possible. In the same spirit, we have revised the guide to reflect more recent court rulings and current government policies. Now that the guide is on the web, we hope to update it on a more regular basis.
The sections of this guide are as follows:
1. SOME HISTORY shows that, as a street performer, you are carrying on a tradition that is as old as civilization itself.
2. YOUR RIGHTS AND RESPONSIBILITIES outlines the New York City Transit regulations, and explains what you are authorized to do.
3. COURT DECISIONS IN YOUR FAVOR highlights many of the legal rulings that uphold the rights of street and subway performers.
4. THE TRANSIT POLICE explains the role of officers underground and suggests some options for dealing with confrontations.
5. TRANSIT POLICE FACT CHECK is a quick reference so that you know what is true and what is false.
6. STATION MANAGERS explains their role and suggests ways to handle confrontations.
7. MUSIC UNDER NEW YORK describes the MTA's music program and how it co-exists with freelance performances.
8. LEGAL ASSISTANCE lists names of attorneys who have agreed to be contacted for advice.
9. PERFORMING ON THE STREETS AND IN THE PARKS provides basic information about recent rulings and policies affecting performances in the city's other major public spaces.
10. OUR VIEWS is where we share with you how we think the rules governing subway music could be improved.
11. CONFRONTATION SHEETS are intended to help you document problems you might have while performing in public spaces.
Here are some abbreviations that you will come across in this guide:
MTA: Metropolitan
Transportation Authority
NYCT: New York City Transit
NYPD: New York Police Department
MUNY: Music Under New York
Please let us know what you think of this guide! You can reach us at: (212) 529-1955 or at Steve@citylore.org.
Thanks,
Susie Tanenbaum, Street
Performers' Advocacy Project
Steve Zeitlin, City Lore
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There have been street performers as long as there have been streets. In ancient Egypt and Greece, people entertained and passed the hat for donations. During the Middle Ages—in Europe, troubadours were the personal street performers of the aristocrats, while minstrels and jongleurs brought joy to the general public.
In colonial America, twelve-year-old Benjamin Franklin sang on the streets of Philadelphia! At the turn of the century, immigrants helped to make street performing popular in New York. There were German marching bands and Italian organ grinders—"hurdy gurdies"—who serenaded women below their tenement windows and during the Great Depression, banjo players set up on subway and elevated platforms.
Government authorities
never knew exactly what to make of street performing. They seemed to think
its spontaneity was a threat to law and order. In the 1930s, New York
Mayor Fiorello LaGuardia called them beggars (he defended the poor but
disapproved of panhandling), and he made it illegal to perform on New
York City's streets.
Although street performing was allowed once again after 1970, subway performances
were illegal until the 1980s. And yet the elevated and underground subway
platforms were not quiet. Artists still expressed themselves and attracted
an audience underground. In the 1940s, for example, Woody Guthrie, Pete
Seeger, and others involved in the growing Urban Folk Revival Movement
pulled out guitars while waiting for their trains. Not only did they reclaim
public space, they believed that songs could change social conditions.
In the early 1960s, young African American and Italian American men sang doo-wop inside subway cars and received donations from appreciative riders. In 1987, with the creation of an official MUNY (Music Under New York) program, public performers have been re-recognized by authorities. The program is now funded and directed by the MTA Arts for Transit office.
Whether you were raised in New York City or in a country with its own street performing tradition, you are helping to carry on a venerable urban tradition.
YOUR RIGHTS AND RESPONSIBILITIES
YOU HAVE A RIGHT TO
PERFORM IN THE NEW YORK CITY SUBWAY SYSTEM
The New York City Transit (NYCT) is the subdivision of the Metropolitan
Transportation Authority (MTA) that operates the city's subways and buses.
The NYCT authorizes these types of free expression in subway stations:
"Public speaking; distribution of written materials; solicitation for charitable, religious or political causes; and artistic performances, including the acceptance of donations [emphasis added]."
The statement we just quoted comes from Section 1050.6 (c) of the New York City Transit rules and regulations governing "non-transit use of transit facilities". As a consequence of the regulations, these activities are also protected by the First Amendment of the United States Constitution [See the end of this guide for the full text of the regulations]. Government (in this case, the NYCT) can only regulate the time, place, or manner in which the activities are presented, and only if restricting them advances a substantial government interest. This translates into the following restrictions on performances:
* setting up at least
25 feet from a token booth
* setting up at least 50 feet from the marked entrance to an NYCT office
or tower
* not blocking access to an escalator, stairwell or elevator
* not interfering with transit services or passenger movement in general
* not performing in an area where construction is underway
* not performing during a public service announcement
* not performing above 85 dBa measured at 5 feet, or above 70 dBa measured
at 2 feet, from a token booth
* not performing in subway cars
YOU DO NOT NEED A
MUNY PERMIT TO PERFORM IN THE SUBWAYS
Some subway performers are members of the MTA's Music Under New York program,
also known as MUNY. Other performers are independent, and in this guide
we refer to them as freelancers.
MUNY schedules performances on designated mezzanines in the subway system and commuter railroad terminals. You have to pass an audition to become a member of MUNY. Twice a month, MUNY members receive a schedule ("permit"), which gives them priority in the spots where they are scheduled to perform. You do not have to be a MUNY member to perform in the subway system! Also, MUNY has nothing to do with subway platforms.
YOU HAVE A RIGHT TO
PERFORM ACOUSTIC MUSIC ON SUBWAY PLATFORMS
Freelancers are authorized to perform on subway platforms. But the NYCT
prohibits the use of amplification devices on platforms, including battery-operated
Mouse amps and microphones. Freelancers, just like MUNY members, may use
amplification when they perform on subway mezzanines.
NO CASSETTE TAPE OR CD SALES: Neither MUNY members nor freelancers are authorized to sell recordings in the subway system. Many of them do anyway, and they risk getting ticketed by the Transit Police or having their work confiscated.
YOU CAN FREELANCE
IN PARTS OF GRAND CENTRAL TERMINAL
Freelancers can request a special "permit to engage in non-commercial
activity" to perform in Grand Central Terminal's 42nd Street Passage
or in the Graybar Passage. Requests have to be made at least 2 days in
advance. The permits are good for 7 days. Write to: General Superintendent,
Metro-North Commuter Railroad Company, Grand Central Terminal, 89 East
42nd Street, New York, NY 10017.
By the 1970s, street performers in many U.S. cities were going to court to have their Constitutional rights upheld. Here are some highlights:
- Goldstein v.
Town of Nantucket 477 F.Supp. 606 (D. Mass. 1979) established
that street music, even when performed for donations, is protected First
Amendment activity: "The fact that plaintiff troubadour accepted
contributions of passersby during his public performance would not dilute
his protection under the First Amendment."
- In Davenport
v. Alexandria, Va. 683 F2d 853 (1983), 748 F2d 208 (1984), the
court held that there were no valid safety arguments to stop musicians
from performing: "There has been shown no safety interest to
outweigh the plaintiff's First Amendment interests."
- As for the New York subways, already in the 1960s People v. St. Clair 56 Misc.2d 326 (Criminal Ct. N.Y. Cty. 1968) ruled that "for First Amendment purposes, no distinction can be wrought between a subway platform and the public street."
Still, until 1985, musical performances were not permitted in New York's subway system. Then guitarst Roger Manning received a ummons on the Lexington Avenue & 59th Street platform for "entertaining passengers", which he challenged in Manhattan Criminal Court. The case became known as People v. Manning Docket No. 5N038025V (Criminal Ct. N.Y. Cty. 1985). In this case, the court decided that the total ban on subway music "was unconstitutionally violative of the First and Fourteenth Amendments of the United States Constitution."
In 1989, the Transit Authority (the old name of the NYCT) proposed to ban music on subway platforms. At some remarkable public hearings, musicians, subway riders, politicians, and civil liberties attorneys spoke, sang, and juggled in opposition to the ban. The Transit Authority listened, but it banned amplification devices on platforms instead.
Guitarist Lloyd Carew-Reid, who had formed an organization called STAR, Subway Troubadours Against Repression, challenged the amp ban in court. Carew-Reid v. Metropolitan Transportation Authority, 1990 WL 3216 at 6 (S.D.N.Y. 1996), was the first federal case to affirm that "the TA [Transit Authority] has designated the subway platforms as public forums for musical expression."
Still, the Second Circuit Court of Appeals upheld the Transit Authority's right to impose the amp ban on platforms, which remains in effect today.
The Transit Police Bureau is a subdivision of the New York Police Department. Transit Police officers are responsible for enforcing the NYCT rules and regulations.
Many officers are friendly to subway performers, and some really appreciate the way a performance can brighten up the subway environment. At the same time, the police are allowed to use their discretion in implementing the NYCT regulations. So, if a performer is not playing by one of the rules, officers can decide whether to let it go, issue a warning or a ticket, eject the performer from the station, or even put the performer under arrest.
If you have a confrontation with the police—if they tell you to change the way you are performing, move you, or tell you to leave—you still have options.
Objecting: You may want to assert your rights by raising objections with the officers. Be aware, however, that in doing this, you may run a greater risk of receiving a summons, having your property confiscated, being charged with "disorderly conduct", or getting arrested.
Complying: Another way of asserting your rights is to comply with the officers' orders (doing what they say) for the moment and to challenge their actions in court later.
Here are some other options, depending upon the situation.
Volume: If the police stop you for playing above the 85-decibel volume limit and you think they're wrong, you can say that you want them to measure your volume with a decibel meter. Their district command should have a decibel meter.
Harassment: If you feel that the police are treating you unfairly or using excess force, take down their badge numbers. Also, ask riders standing nearby if they are willing to be your witnesses, and if they are, take down their names and phone numbers. Use one of the Confrontation Sheets on this web site to collect all of the information. Then you can call one of the attorneys listed on this web site for further advice.
If you get a ticket, make sure you show up in court or respond by mail before the court date. Most tickets require performers to appear either at the Transit Adjudication Bureau at 505 Fulton Street in Brooklyn, or in Criminal Court at 100 Centre Street in Manhattan. It is difficult to challenge a ticket if it charges you with violating one of the NYCT rules, but check the ticket for errors. You can also contact one of the attorneys on this web site for advice.
During our research, we learned from many of you that some Transit Police officers get the rules wrong. Be aware of what's false and what's true!
FALSE: You need
a MUNY permit to perform in the subways.
TRUE: Everyone has a right to perform in the subways, subject only to
time?place?manner regulations.
FALSE: You can
perform, but not for donations.
TRUE: You are authorized to perform and accept donations.
FALSE: No music
is allowed on subway platforms.
TRUE: Acoustic music is allowed on platforms. Acoustic or amplified music
is allowed on mezzanines.
FALSE: Subway music
is banned at certain stations.
TRUE: Transit Police officers have the discretion to decide whether or
not to enforce regulations. They may also tell musicians to lower their
volume or to stop performing for a while, for instance, during rush hours.
But they can not keep musicians out of a station permanently.
If you feel that some officers are misenforcing the rules, show them this guide!
Station Managers are the NYCT employees responsible for monitoring the "quality of life" of their stations. They do this by overseeing any necessary repairs or renovations and by providing customer service to subway riders.
Some performers have reported at least as many confrontations with Station Managers as with the Transit Police. Station Managers do not have the authority to give you tickets, but they have the same discretion as police officers to tell you to lower your volume, or to stop performing at times when an area of the station is very crowded.
Here are a few things you can do in confrontations with Station Managers:
Objecting: You always have the option of raising objections. Just realize that this may lead to an escalation of the conflict.
Complying: Instead of objecting, you can comply with the orders, and use the Confrontation Sheets on this web site to write down everything that happened. Then you can contact one of the attorneys on this web site for advice on how to proceed.
Educating: Show the Station Managers a copy of this guide, and specifically Section 1050.6 (c) of the NYCT rules and regulations. They might appreciate learning something about the rules that they didn't know before!
Reporting: If none of these steps resolve the situation and you believe you're being treated unfairly by a Station Manager, you can "complain to the boss"— write to the NYCT President, Lawrence Reuter, at New York City Transit, 370 Jay Street, Brooklyn, NY 11201. Or contact us at City Lore! [steve@citylore.org]
What it is
MUNY is a program of the Metropolitan Transportation Authority (MTA),
the agency that oversees the NYCT. The MUNY program schedules performances
on a number of mezzanines, in two commuter railroad terminals—Grand
Central Terminal and Penn Station—, in Yankee Stadium and Shea Stadium,
and in the Duffy Square traffic triangle above ground in Times Square.
MUNY has nothing to do with the subway platforms. [http://www.mta.nyc.ny.us/mta/aft/munyfacts1.htm]
How to apply
To become a member of MUNY, you have to audition and be accepted. Call
(212) 878-4678 to arrange an audition. The auditions are held only once
a year and the MUNY program is asking applicants for an audio tape or
a video of their performances ahead of time. Please be aware that a great
audition doesn't guarantee you a place in MUNY; the program only has space
for about 10-20 new members a year. But once you're accepted, you're in—your
membership doesn't expire.
How it works
MUNY members request spots twice a month. They receive schedules printed
up on cards that are often referred to as "permits", listing
the locations and the times at which they are scheduled to perform.
Membership Advantages
Priority
in popular spots: If independent, "freelance" performers
are in your spot when you are scheduled to set up, you can ask them to
leave.
Access to commuter railroad terminals: Only MUNY members are authorized to perform on Grand Central Terminal's lower level and in Penn Station's Long Island Rail Road waiting area.
Less police harassment: Since MUNY members have been scheduled by an official program, the police are less likely to tell them to move. If MUNY members do get harassed, they can report incidents to the MUNY program and ask for help.
Cassette tape and CD sales in commuter railroad terminals: MUNY members may legally sell cassette tapes and CDs in the terminals.
Special events: The MUNY program holds special events during the year, and MUNY members are paid a small stipend to be a part of them.
Referrals: Corporations and individuals call the program to find out how to contact and hire MUNY members.
Rules and restrictions
MUNY members are subject to the NYCT regulations just as freelance performers
are. In addition:
Permits and banners: MUNY members are expected to hang their orange-and-black banners behind them when they perform. They must show their official schedules ("permits") to police officers or Station Managers when asked. They are not supposed to display any other visual devices (such as photos of themselves).
No cassette tape or CD sales on mezzanines: Just like freelance performers, MUNY members are not authorized to sell cassette tapes or CDs in the subway system. Many of them do anyway, and they risk getting ticketed by the Transit Police or having their work confiscated. When this happens, the people who run MUNY generally can not help their members in court.
Contract waiver: MUNY members must sign a contract that requires them to give up certain rights in case of accidents.
Many MUNY members "double" as freelancers when they are not scheduled to perform with MUNY. This is allowed.
The following attorneys and organizations are willing to be contacted if you have confrontations with the police or experience other problems during your public space performances. Please call or write them for advice:
Marni Berk, Esq.
Director of Pro Bono Programs
New York Lawyers for the Public Interest
151 West 30th Street, New York, NY 10001
(212) 244-4664
Paul Chevigny, Esq.,
Professor of Law
New York University School of Law
Vanderbilt Hall, 40 Washington Square South, New York, NY 10012
(212) 998-6249
Art Eisenberg, Esq.
New York Civil Liberties Union (NYCLU)
125 Broad Street, New York, NY 10004
(212) 344-3005
Gene Russianoff, Staff
Attorney
New York Public Interest Research Group (NYPIRG)
9 Murray Street, New York, NY 10007
(212) 349-6460
For legal advice on matters other than performing in the subways and on the streets, you can contact one of these Legal Services offices:
Manhattan — (212)
431-7209
Brooklyn — (718) 237-5500
Queens — (718) 392-5646
PERFORMING ON THE STREETS AND IN THE
PARKS
Streets and parks are traditional public forums, places which "by long tradition or government fiat have been devoted to assembly or debate." [Perry Education Association v. Perry Educators' Association, 460 U.S. 37, 45-46 (1983)] This means that you definitely have a constitutional right to express yourself in them.
Streets
Since the 1970s, musicians have not needed a license to sing or play on
the streets of New York, but now there is a sound amplification permit
requirement. Street performers who use amplification devices are required
to apply for a permit from the local police precinct Community Affairs
Office overseeing the area where they wish to perform. The permit costs
$45 a day, and musicians are expected to apply for it 7 days before they
perform.
During the 1990s, a street musician went to court to challenge these regulations. In Turley v. Police Department of the City of New York, Robert Turley argued that the city's sound amplification permit system was overly restrictive and unconstitutional. The Second Circuit upheld the city's policy with regard to amplified music. Robert Turley may be appealing this decision to the Supreme Court.
Turley also argued that New York City's vendor permitting scheme violated his right to free speech and denied him equal protection of the law because he was effectively barred form selling cassette tapes and CDs during his performances. The court rejected Turley's argument, because it found that the city's permitting scheme satisfied the conditions for meeting a "legitimate government interest."
The sound amplification permit requirement is not enforced consistently throughout the city. Some amplified musicians continue to perform without this permit. Some also continue to sell cassette tapes and CDs. They risk getting ticketed by the police, or possibly having their work confiscated.
Parks
Parks Department regulations require street performers to apply for the
same sound amplification permit from the local police precinct, if the
performance in question can be heard outside the immediate area.
In addition, the Parks Department requires performers to obtain a $25 Special Events permit, at least 21 to 30 days in advance, if either of these conditions apply:
the
performance is expected to draw a large crowd (over 20 people)
the performer wants to set up in a particular location
A single Special Events permit can cover 3 dates in different locations,
or up to a full month (every day) in a specific location. Permits are
granted subject to availability and if the Parks Department deems the
location to be appropriate for the performance. In general, performers
are also expected to comply with Parks Department rules and regulations,
which can be found on the web site: www.nyc.gov/parks.
To obtain the Special Events permit, you have to fill out a one-page application and submit it in person, by mail, or on the Internet. The application is available as a link on the Parks Department's web site: www.nyc.gov/parks. The office address is: Borough Permit Office, New York City Department of Parks & Recreation, 24 West 61st Street (between Broadway & Columbus Circle), 5th Floor, New York, NY 10023. Subway: A B, C, D, 1, 9 to Coulmbus Circle Station. Fax: 212-408-0236. Hours: 10am-5pm Mon-Fri (other times for appointment).
If your request for a Special Events permit is denied, you can appeal the decision to the Parks Department's legal office. Normally, these problems are resolved through negotiation.
If you intend to have vendors at, sell anything at, charge for, or conduct any other revenue-generating activity at your event on parkland, you will require a Temporary Use Authorization (TUA) (PDF, 16 KB) from Parks' Revenue and Concessions Division. For more information about TUAs, call (212) 360-1397.
For specific information about Parks Department regulations outside of Manhattan, you can contact the Borough Parks Offices directly:
Bronx - (718) 430-1847
Brooklyn - (718) 965-8912
Queens - (718) 520-5941
Staten Island - (718) 390-8023
Manhattan - (212) 408-0226
(Recording)
Citywide - (212) 360-1319
In the previous sections of this guide, we aimed to make you aware of the existing regulations governing public space performances, especially as these apply to the subways. Now we want to share with you how we feel the rules could be improved.
* ALLOW AMPLIFIED MUSIC ON SUBWAY PLATFORMS. The authorities argue that amplified music on the platforms produces "excessive noise", which they say interferes with transit operations and reduces public safety. But another argument, which we agree with, is that unamplified instruments such as drums and horns can be just as loud as amplified guitars and vocals. According to this view, the amp ban should be lifted and the NYCT's volume limit could be uniformly enforced with the use of a decibel meter.
* ALLOW THE SALE OF CASSETTE TAPES AND CDs IN THE SUBWAY SYSTEM. We support the argument advanced in Carew-Reid v. MTA that sales of cassette tapes and CDs are an extension of the performers' creative expression. Aside from this, a commercial licensing system can be set up for performers to sell their own recordings. Such a permitting scheme was discussed at the end of the Carew-Reid case, but there was no follow-up. It is not too late to explore such an arrangement.
* MAKE THE SOUND AMPLIFICATION PERMIT AFFORDABLE FOR STREET PERFORMERS. The fee (see the section entitled PERFORMING ON THE STREETS AND IN THE PARKS) is more than some performers earn in one day. If a sound amplification permit is required, we feel that it has to be affordable so that it does not prevent some performances from occurring in the first place.
* MAKE THE SPECIAL EVENTS PERMIT READILY AVAILABLE. The Parks Department requirement to give at least 21 days' advance notice should be reviewed to ensure that it does not result in a "chilling effect" and eliminate spontaneity—a hallmark of street performing since it began centuries ago.
We would like to know how you feel the rules governing street and subway performances are working, and also about your experiences as public space performers. You can reach us at City Lore by phone at (212) 529-1955, or by email, steve@citylore.org.
CONFRONTATION
SHEET
PDF
version to print
Your Name:
___________________________________
Your Telephone Number: ________________________
INCIDENT (Please check as many as apply):
__ Stopped
__ Ejected
__ Ticketed
__ Harassed
__ Other:
Date: _______________________
Time: _______________________
Place: _______________________
WHO WAS INVOLVED:
Name: ___________________________
Title/Badge # if any: ________________
Name: ___________________________
Title/Badge # if any: ________________
Name: ___________________________
Title/Badge # if any: ________________
WITNESSES (Please include riders and other performers)
Name: ____________________________________
Telephone Number: _________________________
Name: ____________________________________
Telephone Number: _________________________
Name: ____________________________________
Telephone Number: _________________________
WHAT HAPPENED (Please
describe briefly below)
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
Use the reverse
side to write down any other important information.
back to top
Baird, Stephen. Street Artists Guild newsletters.
Campbell, Patricia. Passing the Hat: Street Performers in America. New York: Delacorte, 1981.
Harrison-Pepper, Sally. Drawing a Circle in the Square: Street Performing in New York's Washington Square Park. Mississippi: University of Mississippi Press, 1990.
Tanenbaum, Susie. Underground Harmonies: Music and Politics in the Subways of New York. Ithaca: Cornell University Press, 1995.
Arthur Eisenberg, Esq., Executive Director, New York Civil Liberties Union, for his extraordinary assistance in updating this guide
Alan Silver, Esq., NYCLU Fellow, for his extensive research
Stephen Baird, Street Artists Guild; Paul Chevigny, Esq., NYU Law School; Gene Russianoff, Esq., Staff Attorney, New York Public Interest Research Group; and George Sommers, Esq., for their indispensable advice
The original SPAP: Jorge Cabrera, Candace Kim Edel, Bruce Edwards, Eric John, Marcial Olascuaga, Robert T. Perry, Benjamin Salazar, Naomi Schrag, Ricardo Silva, and Steven Witt
Written by Susie Tanenbaum and edited by Steve Zeitlin
Photographs by Jason McConathy
Website publishing by Makalé Faber
Public programs, audience
expansion, and long-range institutional development at City Lore are made
possible by a major grant from the Lila Wallace-Reader's Digest Fund.
Funding for this project has been provided by the Puffin Foundation and
the Joyce Mertz Gillmore Foundation.
