|
o
<br />lo. �c 3
<br />BILL NO.
<br />ORDINANCE NO.
<br />AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND,
<br />INDIANA, AMENDING CHAPTER 4, ARTICLE 4 OF THE SOUTH BEND MUNICIPAL CODE
<br />BY THE 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
<br />the 1800s. "Buskers" were people who would seek their fortunes by entert aining along public ways.
<br />With the passage-of time, street performing became more "vibrant and diverse" with perhaps one of the
<br />most popular busking locations today being Covent Garden in London.
<br />Busking is considered today to be "artistic free speech" and has been distinguished from
<br />panhandling and begging. Busking in public places may be constitutionally regulated by reasonably
<br />addressing "time, place and manner" in the government's interest to maintain public safety, order,
<br />welfare and convenience. Such restrictions must be narrowly tailored and "...must not be based on the
<br />content of the message" but rather must "serve a significant governmental interest, [and] must leave
<br />open ample alternatives for communication ", United States v. Grace, 461 U.S. 171, 177 (1983).
<br />Furthermore, governments "...may not delegate overly broad licensing discretion to a government
<br />official', Freedman v. Maryland, 380 U.S. 56 (1965). "Governmental regulations that allow arbitrary
<br />application are `inherently inconsistent' with valid time, place and manner regulations, because such
<br />discretion has the potential to suppress particular viewpoints ", Heffron v. Int'1 Soceity, for Krishna
<br />Consciousness, Inc., 452 U.S. 640, 649 (1981). The U.S. Supreme Court has also addressed "artistic
<br />expression" noting that this status does not change if the speech is "sold rather than given away ", City of
<br />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
<br />limited to Baltimore, Boston, Cambridge, Chicago, East Lansing, Hartford, Kansas City, New Orleans,
<br />New York, Santa Monica, Seattle, Spokane, St. Louis, Toledo, and Wilmington, N.C., and Worcester.
<br />Several of these 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,
<br />order, welfare and convenience while balancing those interests with protecting the rights of individuals
<br />under the First Amendment. First Amendment rights are applicable to the states through the Fourteenth
<br />Amendment and provide in part that "Congress shall make no law... abridging the freedom of speech ".
<br />Music has been addressed by the U.S. Supreme Court and found to be "...a form of expression and
<br />communication" which is protected under the First Amendment, Ward v. Rock Against Racism, 491 U.S.
<br />781, 790 (1989). Therefore any permit and fee requirements may not constitute prior restraint on
<br />speech, Forsyth County, Georgia v. Nationalist Movement, 505 U.S. 123, 130 (1992).
<br />
|