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ACLU defends street musician who got ticketed for playing on the Market

Backing Up the Buskers

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In the summer of 2012, Charleston police started enforcing a five-year-old city ordinance that says street musicians can't perform in the City Market district. The same rule also bars performers from playing for tips on King Street and near the Visitor Center, the S.C. Aquarium, Waterfront Park, and South of Broad — in other words, anywhere the tourists go.

Last week, the American Civil Liberties Union of South Carolina decided to take up a street musician's case in court. "We've been concerned for some time that there are some serious First Amendment issues involved in how the City of Charleston has established its peddlers' and charitable solicitation statutes," says Susan Dunn, legal director for the ACLU of South Carolina.

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The defendant, Jeff Masin, is a traveling one-man band who last year won the right to perform on New York City subway platforms, a sought-after and competitive gig in the world of busking. But Masin didn't receive as warm a welcome in Charleston. Unaware of the change in enforcement, he played on the Market and received a citation for peddling in a restricted zone. Masin's municipal court date was set for Mon. Feb. 11, but Dunn filed a motion to dismiss the case, and the court dropped the charges. Now Masin is off the hook, but Dunn says there's still a problem for other buskers.

"I'm hoping to create enough smoke that the city might consider looking at these things and revising them in ways that are more protective of First Amendment rights," Dunn says. In Masin's case, Dunn says she also wanted to make the argument that "a busker isn't a peddler to begin with."

Under city ordinances passed in 2007, peddlers (see definition in sidebar) are required to display a special permit from the city whenever they sell goods or services. To get that permit, a performer must pay $25 for a background check, provide a photograph, pay a $7 application fee, and then pay unspecified additional fees based on estimated revenue.

Ralph Longshore, a traveling artist who painted himself solid white and performed as a human statue on Charleston streets in November and December, says he didn't mind the application process, noting that the background check keeps out "the riffraff and train kids and the New Age hobos" who have made a bad name for street performers in other cities. But he disagreed with how the city lumps street performers in with peddlers. He says he can understand why his girlfriend, a jewelry maker, wouldn't be allowed to compete with vendors who paid for stalls on the Market, but his performance doesn't put him in competition with artisans selling their wares. "As a street performer, that shouldn't apply, because we're not selling merchandise," Longshore says.

Scott Watson, the new director of Charleston's Office of Cultural Affairs, says he's not in a position to comment on the ACLU's legal challenge, but he welcomes comments and concerns from street performers. "If the livelihood of any artist in this community is in question, we need to cast ourselves in a role where we can facilitate a conversation about those concerns," Watson says.

Watson has already heard from Glenn Orange, a guitarist who played on the Market for years until police gave him the boot last year. Orange says he has also taken his complaints to the mayor's office four times, and he plans to take up his case with Police Chief Greg Mullen. "I'm getting a little frustrated," he says.

Other street musicians aren't quite as up in arms. Xylophonist Clarence McDonald says he has had to work extra odd jobs since he was forced to relocate his musical act from the Market to East Bay Street. "The money is not as good, but I still enjoy it just as much," he says.

McDonald isn't a fighter, but Dunn plans to take the city to task on its ordinances. "This is a perverse combination of both banning and a pretty burdensome permitting process," Dunn says. She also has a case in the works to challenge the charitable solicitation ordinance, which requires panhandlers to jump through the same hoops as peddlers before they can ask a pedestrian for money to buy a sandwich. "The effect of that, of course, is to criminalize poverty, which is a real movement across the country," Dunn says. (Side note: In 2012, the city issued 253 peddler's permits but only 11 charitable solicitation permits. Unsurprisingly, people who need to beg for money don't seem to have the $32 on hand to apply for a permit.)

Dunn says ordinances like Charleston's busking laws come from a "desire to sanitize the town," but having practiced law in Charleston since 1977, she knows what she loves about the Holy City. "One of the charms of Charleston is that it is a real city," Dunn says. "It's not Disney World."

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