verb in·fringe \in-ˈfrinj\
: to do something that does not obey or follow (a rule, law, etc.) ( chiefly US )
: to wrongly limit or restrict (something, such as another person’s rights)
Full Definition of INFRINGE
1: to encroach upon in a way that violates law or the rights of another <infringe a patent>
2: obsolete : defeat, frustrate
: encroach —used with on or upon <infringe on our rights>
— in·fring·er noun
The Buffalo Busker
Buffalo, New York
copyright: 2015 by G.F. Mooney FREE, Donations accepted
July 27, 2015 Volume XVI, Number I
Celebrate the festival—Halloo !!!
by Gary F. Mooney
I love the mandate that governs the BUFFALO iNFRINGEMENT FESTIVAL (BiF). The organizers truly appreciate the creative artists that are hiding in our community. This festival staff (all volunteers themselves) spend countless hours coordinating artists and volunteer venues to host these artists. They accomplish this all by mutual agreement, so everybody can be happy.
JOB WELL DONE BiF !
In years prior, the festival has been well organized and promoted in Artvoice and other media. Festivities on public right of ways were “staying under the radar” with law enforcement agencies. This year, BiF faced the issue of restricted speech artistic expression head–on. David Adamczyk assisted artists in obtaining city mandated licenses.
Many artists hedged at the licensing requirement for outdoor entertainers. Several refused to apply for the city license at $10.50. Some dropped out of the festival altogether. Others opted to perform but refuse all gratuities. Many paid the fee to appease this government imposed restriction of protected speech, even though it is in violation of the First Amendment, U.S. Constitution.
Buffalo City Code
Chapter 319:Performers, Outdoor
[HISTORY: Derived from Art. XIV of Ch. V of the Charter and Ordinances, 1974, of the City of Buffalo. Amendments noted where applicable.]
§ 319-1 License required.
[Amended 12-9-2003, effective 12-19-2003]
No person shall perform magic, act, sing, dance, play music, act as a mime, juggle or engage in similar entertainments upon the streets, sidewalks or other outdoor public places of the City without first obtaining a license to do so from the Commissioner of Permit and Inspection Services.
Read this… carefully.
These forms of artistic speech and expression are protected by the First Amendment, and articulated by court rulings.
This chapter states that you need a license before engaging in any of these activities. There is no mention here of soliciting money. Money is not the issue. The sole subject of this is a ban on “entertainments” as interpreted by law enforcement. This allows for censorship.
Prior restraint on protected speech is unlawful. This paragraph has a chilling effect on those who do not know their rights under law.
Assuming that such entertainments will not insight riots, promote treason, make false claim of “fire” or instill unreasonable menace upon the audience, such expression is legal.
§ 319-2 Application for license.
[Amended 12-9-2003, effective 12-19-2003]
Application for such licenses shall be made upon a blank form furnished by the Commissioner of Permit and Inspection Services, signed and verified, giving the name, address and telephone number of the applicant. Said application shall be filed with the Commissioner of Permit and Inspection Services and accompanied by a fee as provided in Chapter 175, Fees.
To receive the city’s license the applicant must surrender his identity and contact information for the city’s record.
The City of Buffalo charges a fee for the licensee to engage in protected artistic expression. Free speech will cost you $10.50 per year in the city. (Waivers will be discussed later.)
§ 319-3 Expiration; contents; transferability.
A. The license shall be effective for one year from its date of issuance.
C. No such license shall be transferred from one person to another.
Your address is not to appear on the printed license. As your license must be displayed at all times during your performance (§ 319-6) some observers may be offended. An offended person may become an unwelcome visitor at your home.
§ 319-4 Free licenses.
[Amended 12-9-2003, effective 12-19-2003]
In his discretion, the Commissioner of Permit and Inspection Services may issue licenses free of charge to indigent persons. Any such free license shall expire 30 days after the date of its issuance unless sooner revoked.
Disclaimer: license is free if you cannot afford it.
When I filed a legitimate request for this indigent waiver, this request was refused. “We don’t give free licenses.” was the director’s initial response. After reviewing this law, he demanded “proof of income” from the indigent person. How do you prove what does not exist?
§ 319-5 Information to be furnished to licensees.
All licensees shall be furnished a copy of this chapter, together with a list of areas and places where performances are restricted.
The City is compelled to “furnish” the written chapter 319 to all who apply for this license. This paragraph suggests the licensing authority should attach a copy of this law to the printed license — they do not.
The Office of the Commissioner of Permit and Inspection Services ignores this obligation under law. The licensing authority has never given me a complete copy of this law. They have referred me to the internet, or to the City Clerk’s office.
I have requested a list “…of places and areas where performances are restricted.” Never has a written document been provided. Verbal suggestions have been proffered, but no legal list of banned locations exists, to the best of my knowledge.
§ 319-6 Display of license.
All persons licensed hereunder shall display their licenses at all times during the street performances.
… “Your papers, please.” License is a label of privilege. If you accept protected speech as a privilege, you then forfeit it as your right.
You are performing in a licensed industry—the same as a doctor, plumber or an electrician. Therefore, it is not legal to hire a musician for an outdoor concert, unless he holds THIS license. (See: § 319-1.)
A. Performances regulated hereunder may take place in public areas, unless excluded by § 319-9 of this chapter. Performances may take place on private property upon written permission of the owner or other person having charge of such property. Performances may take place at a fair or public festival authorized under this Code upon written permission of the sponsor thereof.
B. Performances shall be restricted to the following hours: 8:00 a.m. to 10:00 p.m. on Mondays through Thursdays; 8:00 a.m. to 11:00 p.m. on Fridays; 10:00 a.m. to 11:00 p.m. on Saturdays; 2:00 p.m. to 10:00 p.m. on Sundays, except that in those areas known as the “Theater District” and the “Pedestrian Mall,” performances may occur between the hours of 9:00 a.m. and 1:30 a.m.
Restricting protected speech at an outdoor public gathering or festival is a touchy debate. By requiring a license of all artists, event sponsors may claim the “license” is invalid at that event.
Dates and times of performance fall into the: “…time, place, and manner…” provision for reasonable regulation of public performances. Time restrictions aim to avoid public disturbance during residential sleeping hours. Special extensions are allowed for the entertainment district, where residential sleeping patterns are not an issue.
§ 319-8 General restrictions on performances.
A. Amplified equipment. A performer licensed hereunder may use amplified equipment only with permission therefor from the Commissioner of Permit and Inspection Services. Such permission must be noted on the face of the license. Amplified equipment shall be battery-powered only and shall be audible for a distance not to exceed 100 feet.
[Amended 12-9-2003, effective 12-19-2003]
B. Passage of public. No licensee shall perform so as to block the passage of the public through a public area, unless permitted to do so at a fair or public festival by the sponsor thereof. The Commissioner of Police is hereby authorized to disperse a crowd or portion thereof which is blocking the passage of the public but shall not order the licensee to quit the location absent a violation of this Code or other statute, rule or regulation.
C. Distance requirements.
(1) No licensee shall perform at a distance of closer than 50 feet to another licensee or group of licensees engaged in a performance.
(2) No licensee shall perform at a distance of closer than 50 feet to a restricted area as determined by the Common Council, Commissioner of Police or as delineated by a posted sign.
D. Contributions. A licensee may accept contributions at a performance in a hat, instrument case or other receptacle. All signs requesting contribution shall be limited in size to 12 inches by 11 inches.
319-8 General restrictions are the rules of conduct in this code.
Many cities have passed laws to ban amplifiers. These laws have been abandoned. Courts have ruled that amplified speech is protected speech, within reason. It is appropriate to amplify a performance to cut through ambient street noise. Too much volume is still a public disturbance.
In Buffalo, I have applied for an amplified equipment endorsement. The commissioner has consistently refused. I took this issue before The Buffalo Common Council, where the matter was investigated, and buried in committee.
Never block the passage of pedestrians. Blocking access and egress is unsafe and infringes upon the rights of others. (The fair or festival exemption is a mystery to me. Why would a sponsor wish to cause a safety hazard?)
But this law offers specific PROTECTION TO THE PERFORMER.
- 319-8 B.“…The Commissioner of Police (…) shall not order the licensee to quit the location absent a violation…”
Police may not order a licensee to stop on the complaint that he is an unlicensed vendor, vagrant, panhandler, beggar or loiterer. The license protects a licensee from police harassment, playing by their rules.
Maintain a fair distance from other performers. Fifty feet suggested here is reasonable.
Restricted areas are covered next paragraph.
This law protects “contributions”. This choice is ascribed to your audience. They have a right to give.
Historically, police have falsely criminalized artists by charging them with disorderly conduct, vagrancy, hooliganism, pandering, aggressive panhandling, begging or any other made-up charge to stop their performance. In Buffalo this was the case. The Outdoor Performers License law was created to defend a street performer’s rights and segregate buskers from those other meandering criminal charges.
§ 319-9 Restricted areas.
A. The Commissioner of Police may exclude a public area from performances for a period not to exceed seven days if, in his discretion, such exclusion is necessary or desirable for the public health, safety or welfare.
B. Upon the written recommendation of the Commissioner of Police, the Common Council may conduct a public hearing to determine whether a public area should be excluded from performances by persons licensed under this chapter. The Common Council shall determine whether the public health, safety or welfare would require such an exclusion and may exclude any public area from performances. No such exclusion shall be effective until seven days after notice thereof has been mailed to all licensees.
The police may not close an area without cause. The cause must be related to: “…public health, safety or welfare.” Police may not close an area except for a danger, and for no more than one week.
The Buffalo Common Council must hold a public hearing before they can on exclude any area from a licensed performer under this law.
“No such exclusion shall be effective until seven days after notice thereof has been mailed to all licensees.”
So, even if the City lawmakers vote to exclude an area, that decision is NOT ENFORCABLE, under law, until licensees are advised by mail.
(Note: I have never received a notice of this nature in the mail. My license was first issued in the year 1999.)
§ 319-10 Suspension and revocation of licenses.
A. A license issued hereunder may be suspended or revoked by the Common Council for cause after notice and an opportunity for a hearing have been afforded the licensee.
B. Upon revocation, the former licensee may be restricted from application for a license for such time as the Common Council may determine but no longer than one year.
Your [free speech] “license… may be suspended or revoked by the Common Council for cause…”
Suspension of license by the Common Council violates the separation of governmental powers clause. Common Council has the authority to pass laws and ordinances. It is the duty of the judicial system to see complaints and pass judgment. This clause is a possible devise for governmental censorship.
The Buffalo Infringement Festival is well managed — yet oddly named. Every performer is cooperating with the law. They are filling out the forms, paying all the fees and jumping thru the hoops.
These artists are not infringers; these artists are the VICTIMS of a despotic system of legal loopholes designed to censor out objectionable speech through the process of invidious discrimination.
In this law, (Chapter 319 Outdoor Performers) the city of Buffalo infringes on the rights of artists to perform in public places, as protected by the first amendment of the U.S. constitution.
The law protects the interests of the City, granting certain rights only as permissions. By signing into this license scheme the City may assume that you have waived your speech rights under the terms of the license contract.
An unlawful contract is not binding and cannot be enforced under law. This shall someday be challenged, and revealed.
I appreciate those performers presenting their art under the protection of the festival. I appreciate the role this festival has in exposing the truth of how censorship works in today’s culture.
For their great work I suggest recommitting the Buffalo Infringement Festival to its true calling and renaming it:
THE BUFFALO ANTI-INFRINGEMENT FESTIVAL .
Goldstein v. Town of Nantucket, 477 F. Supp., 606, (1979)
TOWN OF NANTUCKET et al.
Civ. A No. 79-1455-Z.
United States District Court
Sept. 25, 1979
Professional musician brought action for declaratory and injunctive relief, alleging that enforcement by town of its transient bylaw deprived him of rights secured by the First Amendment. The District Court, Zobel, J., held that transient vendor bylaw, as applied to troubadour, was constitutionally deficient.
Judgement to be entered.
- Constitutional Law 90(1)
By its terms, the First Amendment forbids infringement of right of free speech and this constitutional protection of free speech, moreover, applies broadly to various forms of expression, literacy, artistic, political, and scientific. U.S.C.A. Const. Amend. 1
- Constitutional Law 90.1(6)
Troubadour public performance of Nantucket’s traditional folk music was clearly within scope of protected First Amendment expression. U.S.C.A. Const. Amend. 1.
- Constitutional Law 90(3)
Constitutional guarantee of the First Amendment does not confer absolute protection from government regulation of public expression; states may impose reasonable and impartial regulations upon the time, place and manner of public expression. U.S.C.A. Const. Amend. 1
- Constitutional Law 90.1(4)
Nantucket’s bylaws setting standards for licensing of entertainers, including plaintiff troubadour, and which included broad licensing criteria of financial responsibility of applicant, effect on neighboring properties, and opinion of town merchants, did not pass constitutional muster as applied to plaintiff troubadour, whose contemplated activity of performing in tradition of balladeers on the street, enjoyed First Amendment protection. U.S.C.A. Const. Amend. 1
- Constitutional Law 90.1(4)
Fact that plaintiff troubadour accepted contributions of passersby during his public performances would not dilute his protection under the First Amendment and would to broaden town’s narrow mandate to exercise impartial regulation upon use of sidewalks for public expression. U.S.C.A. Const. Amend. 1.