With all the struggling musicians in El Paso, I have to wonder why I don’t see more buskers.
Last week I asked City Clerk Richarda Momsen if the City had any ordinances prohibiting, limiting, or restricting the live performance of music in public places. Yesterday she told me she kicked the question to the City Prosecutor’s office. So far, they haven’t come up with anything.
Claire told me she was walking downtown a few years ago and saw a couple of bicycle police officers ask some itinerant guitarists for their permit. In fact, they didn’t need one, according to this article on Wikipedia:
In the United States there have been numerous legal cases about regulations and laws that have decided the rights of buskers to perform in public. Most of these laws and regulations have been found to be unconstitutional when challenged. In the US, free speech is considered a fundamental right of every individual, guaranteed by the First and Fourteenth constitutional amendments, and in the majority of legal cases it has been concluded that practicing artistic free speech is legal. Busking is legally considered to be artistic free speech and clearly not panhandling or begging.
In the United States, reasons to regulate or ban busking behavior include public safety issues and noise issues in certain areas such as hospital zones and residential zones. In residential zones, a reasonable curfew may be allowed. Such laws must be narrowly tailored to eliminate only the perceived evils by limiting the time, place and manner that busking may be practiced. They must also leave open reasonable alternative venues. The only exceptions to these free speech rules are sedition, as defined by the Smith Act, public displays of pornography and obscenity as defined by the Miller test for obscenity, criminal behavior such as fraud or defamation, certain commercial advertising and the common laws talked about above. In the US, laws regulating or banning busking must be applied evenly to all forms of free speech according to the first and fourteenth constitutional amendments and the judicial decisions listed below.
Busking cannot be prohibited in an area where other forms of free speech are not prohibited. For example, if busking is regulated or banned but people are allowed to conduct free speech behavior for pickets, protests, religious, political, educational, sports, commercial or other purposes, then the law is illegal. In the United States any form of regulation on artistic free speech must not be judgmental, and permits must not be so restrictive, complex, difficult or expensive to obtain that they inhibit free speech. It is also unlawful per federal court decision for law officers to seize a performer’s instruments.
Buskers would add a lot to the urban fabric downtown and help to humanize the sterile landscape. And there’s foot traffic downtown. Itinerant musicians could take advantage of the baseball fans streaming to the ballpark (next season) and all the other entertainments in our city center, including the Plaza.
Downtown could be human again.
And wouldn’t it be cool to see a conjunto trio playing there next to Luis Jimenez’ sculpture? Wouldn’t that be a legitimate expression of the soul of El Paso?