Regulating Free Speech Through Place and Time

Regulating Free Speech Through Place and Time
By Kirsten Anderberg (http://www.kirstenanderberg.com)
Written November 2006

The fact that I am able to write this article, with current and past evidence that attests to the veracity of my claims, makes me sad. But it is true that the United States has gotten *around* the Constitution’s free speech amendments by simply allowing the regulation of “place and time.” The actual situation on U.S. streets today, regarding “free speech” is this: public/governmental entities and private merchants alike have found ways to *over-regulate* “free speech” to such a point that they make it so much of a hassle for the street performers that they simply quit and go to a different town, or they create such bizarre “time and place” regulations as to render the street performances nearly nonexistent. If we can have our free speech “rights,” but only in a back alley somewhere, not on the main streets in town, or we can only perform on the main streets of town once every store is closed, say after 10 pm, but then, we must also not disturb any tenants in any buildings after 10 pm, before you know it, as a street performer, you hit so many walls to free speech that you really have to be driven in some way to street perform for any length of time. For me, the thing that kept me motivated to keep busking over almost 3 decades now is the rebellious nature of claiming a street and making it into DIY entertainment, in the here and now. It has been a political motivation that has kept me struggling to find a new place to perform on public streets, where cops won’t force me to leave, over and over, for merely offering music for donations on a public street in the United States.

For instance, in May 2006, I played the streets at a local Seattle street fair that I have street performed (or “busked”) at for nearly 30 years. This fair, the University Street Fair, is held on a main street in Seattle, which is closed for the fair. Vendors buy spaces, street performers perform, etc. In past years, we performers would take the open intersections that were closed down to traffic for the fair, and would work with each other, to rotate every hour, basically. But this year, some idiot decided to try to close down the intersections to the local traditions of street performance there, and put up these big kiosks in the center of the intersections. Street performers were miffed. Some street performers banded together and simply moved the big kiosks s to the wayside and took the intersections by mere public appeal, using huge audiences wielded against the authorities to keep performing no matter what anyone said. Others of us, mostly the music acts, as some of the vaudevillians were loud and flashy enough to claim the intersections in a unified front, fanned out to the streets of the fair. We were forced into a very small set of spaces once they took away the large, open spaces of the intersections, which gave space to hundreds of performers some years.

So this year, I decided to try to go with the flow, and not use the traditional intersections, and to hunt down new places to perform up and down the main street of the fair. The first day was fine. I found little spaces here and there, where perhaps a booth rented a space and did not show, so I could play there without disturbing anyone, or I found a storefront of a store closed on weekends, so I had a place to place and no one was upset, etc. But on Sunday, I did run into trouble. I returned to a place I had busked the day prior. I began to set up and immediately a group of redneck white men in their 60’s, who had a booth hawking cans of soda for some non-profit group next to me, said I could not play on the public street next to their rented booth space. I assume this was due to the political (feminist/ecodefense/class comedy) content of my material, since this *was* a public street, after all, and these people did not rent any space past their booth space, to be perfectly frank. They certainly did not rent all the public street space around them by renting a small booth there! On Saturday, they did not know what I did until after I performed, so it was too late to stop me. But on Sunday, they saw me coming, and decided to head me off at the pass. As I began to bicker with the men from the Rotary Club, or whatever it was they were representing, an older white male who was selling some crafts across from me, came up and joined in with the other men, saying I had to leave. He said that since two booths around me did not want my music there, I had to leave. But that is not how *free speech* works. I can have 100 people around me who *DO NOT LIKE* my music and politics, and I STILL have the right to perform on a public street! That, literally, is what “free speech” means: Protection of my right to perform controversial political speech in public spaces, free from mob violence and government intervention. It *is* just THOUGHTS AND IDEAS that upsets people when I perform on public streets, that is the “crime” I am committing, remember.

This year, after I was hassled by the booth men, they called the authorities of the fair, the University Chamber of Commerce. I was approached mid- set, and told I had to shut my set in the street down, and move to the 16 or so marked spots for street performers. This authority handed me a map and said I had to move to the “designated street performer spots.” These spots happened to be in alley entrances off the actual street where the fair was, and hidden down side streets, in areas with very little traffic! I protested and refused to leave my spot, out on the open street, where people were! The purpose of free speech is not to allow me free speech in abandoned alleys! It is to allow me free speech where people go, in the public square! I was hurting no one. The only problems were some right wing booth renters who did not like my political satire near their booth on a public street, yet I was handed a map of places I was “allowed” to perform my free speech, away from the people, and told to leave. When I refused, the Seattle Police were called in. I asked what law I was breaking. The Seattle Police, led by officer E. Hall, as he smoked a cigar WHILE ON DUTY, forced me, physically, to leave, without ever giving me an answer as to what law I was breaking. There is still an ongoing (7 month long so far, May-Nov) investigation about this incident at Seattle’s Office for Civil Rights on my behalf.

But my point is governmental entities along with merchants, somehow have reduced “free speech” in the United States to be some strange thing that those with money and power can control and dictate perimeters of, via “time and space” regulations. Another great example of this is the Pike Place Market in Seattle, Wa. Let’s begin with the “free” part of free speech. The Market is a public space, owned by the City of Seattle, with public streets and sidewalks, and is open to the public daily. Yet if you want to perform free speech in the form of political music in the Market, you will need to cough up $30 or else you will literally be roughed up PHYSICALLY, by the Market’s security squad run by the PDA (Preservation and Development Authority), and also threatened with/and or arrested for trespass. This PDA’s Mafia-like shaking down of low-income street performers for $30 to perform free speech on public streets is only adding insult to injury when you read local reports of what the Market’s PDA spent *OUR* money on last year.

Street performers are routinely assaulted and robbed of their 1st Amendment rights daily at the Pike Place Market, *forced* to pay the PDA for something we already own, free speech rights on public streets. Yet the Seattle Weekly reported in its Oct. 17, 2006 issue, that the state auditor is reporting the PDA “generally followed spending laws, but was a bit too bountiful with employee parties, perks, and refreshments last year.” This PDA that PHYSICALLY FORCES $30 fees from the poor for free speech as buskers at the Market, spent “$3,800 on a barbeque, and holiday parties for employees and families, spent $2,992 in reimbursements to employees who held their own parties, and laid out $1,749 in 5 instances of staff meetings where food exceeded the “light refreshment” threshold...additionally, 6 Market employees whose names were drawn from a hat won raffle tickets valued at $1200, while another $3,486 in gift certificates was given to vendors and employees.” The state auditor said in this article that the “payments were casually doled out rather than disbursed under preexisting policies that define perks and how to earn them.” So this PDA that needs to shake down street performers for illegal $30 fees, pays itself thousands of dollars, using our street performer dollars even, to *party*, literally!

So the first problem with “free speech” in Seattle’s “Public Market” is it costs money. And the management agency that the City of Seattle has hired to manage the Market, the PDA, has a corrupt past. As recently as 2002, the PDA’s “Market Master,” Millie Padua, was caught embezzling over $170,000 and sentenced to 2 years in jail. This was the woman who forced me to pay her fees for my free speech rights for years. The PDA is riddled with corruption historically, and this bullying and roughing up street performers for forced payment for the free speech rights they already own is staying in line with such corrupt behaviors. This charging of money for free speech rights is not only something that the PDA, thus the City of Seattle, is condoning and facilitating, but also money-hungry street performers support higher costs for street performer “rights” at the Market to keep competition out! Which is a sad state of affairs. One man who is continually on the “Market Busker Guild” Board, is one of the staunchest supporters of higher fees for our “free” speech rights as street performers at the Market, simply to keep his domain less competitive. Behaviors such as those have caused the majority of street performers to actually boycott the faux “buskers guild” at the Market, since it does not seem to have the interests of *most* street performers at heart. It is more about protecting turf, not protecting free speech.

Another issue with the Pike Place Market in Seattle and free speech is the regulation of place and time. When I first began playing at the Market in 1978, we performers had free range. We were FORCED to obtain a busker permit to play there, but they did not charge money for those permits back then. Once we gave them our ID and information, we were “allowed” to perform on public streets without PDA assaults and harassment. This ID system, by the way, where they are treating street performers differently than the rest of the public, treating us preemptively as criminals, really, also violates the very intent of the 1st Amendment. Once they ID’d us, and badged us, we were then “allowed” to perform on the public streets of the Market with little interference. But then merchants and crafts people had bad days, bad seasons, even, and they began to see street performers as funneling money away from their sales. Attacks on performers began and continue today at the Market. The Market began to “regulate” where we could play, and when, to the desires of the merchants, not the performers. By the late 1970’s, the PDA was facilitating red lines of *where* performers could play and *when*, on public streets, to the whims of merchants and crafters, and now the PDA even has a faux busker guild as the Yes Men for their endeavors against busker interests! Wow.

Back in the 1970’s, street performers routinely played under the big clock you see when you enter the Market. But then the fish throwing guys decided they were performers, and needed the space for *their* shows, and *they* rent a space with big money, so before we knew it, street performers were banned from the main spot they played, on Fridays and Saturdays during the summer peak season, and also it was/is closed to us during the heavily-trafficked Christmas season. The reason we were told we cannot play the Clock spot during peak times is we “block the aisle.” Seriously, that was the reason we were given for years on end now. And yet what happens every day under the clock, while musicians are banned? The fish guys clog up the entire Clock area, blocking ALL aisles in ALL directions, doing their fish throwing/yelling show for tourists. So really, what happened there, was the fish guys wanted the performer spot. Seriously. And they got it.

A similar situation happened at the Soames Dunn Building spot back in the 1970’s. That spot in the Market was an inside spot. It was THE ONLY spot you could play in the Market where it was warm and inside a building during the winter. I got along well with all the merchants in the building and literally spent my winters playing in that building, eating the Middle Eastern sandwiches La Sabra would give me as tips and talking with the young girl who hung out as her parents ran the shop, The Souk...then in moved a quilt company upstairs. They could not get traffic to their location upstairs, as no one noticed it up there. So they decided to blare loud speakers of Celtic music to attract people up to their store. But it drowned out and ruined the street performer spot. I went up and asked them if they could just turn it off while I played for an hour, but they were belligerent and only turned it up louder! A fight began between this merchant and buskers. The merchant turned to the Market Merchants Association for help, which has inside strings to the PDA, and before we knew it, the quilt store had literally taken away the only inside busker spot in the Market and we performers had absolutely no recourse!

This scene has played out at the Market so many times now as to be an obvious repulsive pattern. The “Desmonde Bridge” spot at the Market has the same fate. It used to be open to us all, without perimeters. Then some crafters had bad sales and got mad as buskers pulled out money hourly off the busker spot and they sat making no sales all day. They even blamed performers, saying we take their money! They did the same thing the fish guys, the quilt shop, etc. did. They went to the PDA, and used their merchant power. Some right wing crafters did not like the financial competition of buskers in the public square near them, others just did not like some of the buskers’ politics, and claimed we were in “their” space doing political music they did not like and they were dead set on shutting those acts down. So, like the spots before this one, at some point in the late 1970’s, the Bridge Spot was taken through over-regulation and basic 1st Amendment theft. Once again, we performers were banned from the busker spot at the Bridge on Fridays and Saturdays during the summer and Christmas seasons, under the guise that we “block the aisles,” the same excuse used at the Clock. But the real reason for that closure was the crafters did not want any financial competition in that area, with a small group of crafters also trying to keep out any politics that do not suit their conservative world views.

As a street performer for almost 30 years now, I can give you endless examples of “free speech” thefts, on public streets, via governmental/public agencies working on the pressure of merchants who want to control public streets, to either monitor the political contents of street performances or to stop competing free markets on the street. The most common way that free speech is stolen right under our noses is this bogus use of “regulation of time and place” within the confines of 1st Amendment/”free speech” rights. Pretty much once the government can regulate the TIME AND PLACE OF FREE SPEECH, it is NO LONGER FREE SPEECH. The “time and place” factor” effectively and constructively ELIMINATES free speech. And that is exactly *why* it exists. So the next time you try to assert your rights to free speech as a street performer on the streets of the U.S., whether you are in Santa Cruz, Ca., Portland, Oregon, Seattle, Wa., San Francisco, New Orleans, NYC, L.A., it doesn’t matter where you go...they will try to use “time and place” as a way to STEAL your free speech. It happens every day. It is the continual and eternal street performer fight. It is a worthy fight. But it is happening in most large cities, and goes under the radar on the whole. Think about it. How can regulating “time and place” help open up free speech? It can only limit free speech, making it not free. People need to think about these issues. Go try street performing today and test out your own free speech rights. You will be shocked at what you find, is my guess.