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SUBSTITUTE BILL NO. 65-13
<br />ORDINANCE NO. 101-74—b
<br />AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA,
<br />AMENDING CHAPTER 4, ARTICLE 4 OF THE SOUTH BEND MUNICIPAL CODE BY THE
<br />INCLUSION OF NEW SECTION 4 -21 ENTITLED
<br />BUSKERS AND SIDEWALK PERFORMERS
<br />STATEMENT OF PURPOSE AND INTENT
<br />"Busking" is a form of performing in public places which has its origin in Great Britain during the
<br />1800s. "Buskers" were people who would seek their fortunes by entertaining along public ways. With the
<br />passage of time, street performing became more "vibrant and diverse" with perhaps one of the most popular
<br />busking locations today being Covent Garden in London.
<br />Busking is considered today to be "artistic free speech" and has been distinguished from panhandling
<br />and begging. Busking in public places may be constitutionally regulated by reasonably addressing "time, place
<br />and manner" in the government's interest to maintain public safety, order, welfare and convenience. Such
<br />restrictions must be narrowly tailored and "...must not be based on the content of the message" but rather must
<br />"serve a significant governmental interest, [and] must leave open ample alternatives for communication ",
<br />United States v. Grace, 461 U.S. 171, 177 (1983). Furthermore, governments "...may not delegate overly
<br />broad licensing discretion to a government official ", Freedman v. Maryland, 380 U.S. 56 (1965).
<br />"Governmental regulations that allow arbitrary application are 'inherently inconsistent' with valid time, place
<br />and manner regulations, because such discretion has the potential to suppress particular viewpoints", Heffron v.
<br />Int'1 Soceity for Krishna Consciousness, Inc., 452 U.S. 640, 649 (1981). The U.S. Supreme Court has also
<br />addressed "artistic expression" noting that this status does not change if the speech is "sold rather than given
<br />away ", City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 756 (1988).
<br />Many cities throughout the United States have passed busking ordinances, including but not limited to
<br />Baltimore, Boston, Cambridge, Chicago, East Lansing, Hartford, Kansas City, New Orleans, New York, Santa
<br />Monica, Seattle, Spokane, St. Louis, Toledo, and Wilmington, N.C., and Worcester. Several of these
<br />ordinances have been reviewed to determine the "best practices" in this area.
<br />The following regulations are aimed to further promote the vibrancy of the City of South Bend's
<br />downtown. They are also proposed to further the governmental interest in preserving public safety, order,
<br />welfare and convenience while balancing those interests with protecting the rights of individuals under the First
<br />Amendment. First Amendment rights are applicable to the states through the Fourteenth Amendment and
<br />provide in part that "Congress shall make no law... abridging the freedom of speech ". Music has been
<br />addressed by the U.S. Supreme Court and found to be "...a form of expression and communication" which is
<br />protected under the First Amendment, Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989). Therefore any
<br />permit and fee requirements may not constitute prior restraint on speech, Forsyth County, Georgia v.
<br />Nationalist Movement, 505 U.S. 123, 130 (1992).
<br />The following regulations are designed to be a pilot program in South Bend's Downtown Central
<br />Business and Entertainment Area, which if successfully implemented, may be expanded to other parts of the
<br />City of South Bend, Indiana. These regulations shall be formally reviewed by the South Bend Common
<br />Council and the City Administration no later than August 1, 2014, to determine whether the pilot program
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