A History of NYC Busking and Street Performance

Hav­ing spent the first part of my life on an In­dian reser­va­tion, I was no stranger to le­gal bat­tles; land rights, wa­ter rights, bor­ders and bound­aries (where they begin, where they end, and even, “how high does the sky go?”). These early de­bates whet my ap­petite to un­der­stand and make sense of a le­gal sys­tem that seemed mis­un­der­stood and sense­less, at best. Since In­dian reser­va­tions were con­sid­ered sov­er­eign na­tions, the Con­sti­tu­tion and the Bill of Rights were laws that didn’t ap­ply to me. I was fas­ci­nated by the idea of the Found­ing Fathers—dressed in baggy pan­taloons and starchy shirts—etching out the fu­ture of a na­tion with their feather pens. A na­tion that would surely grow and change and evolve, for bet­ter or worse, into some­thing dif­fer­ent than it began.

And change, that na­tion did.

I ar­rived in New York City in the wake of Bar­rack Obama’s elec­tion to the pres­i­dency. Hopes ran high, ex­cite­ment was con­ta­gious, and—ac­cord­ing to the president-elect—change was inevitable.

I wanted to ex­pe­ri­ence that change first­-hand. I wanted to be in the mid­dle of the Ap­ple, sa­vor­ing the smells that wafted down the al­ley­ways, hear­ing for­eign tongues dance through the air. I also needed to earn a living.

One day, while wan­der­ing through the jun­gle of Times Square, I came across Ben­jamin Sher­man, who had a company called Prac­tice Safe Pol­icy. Ben­jamin had mar­ried safe sex and politics—two of my fa­vorite top­ics. I couldn’t wait to hit the streets and sell his line of nov­elty po­lit­i­cal con­doms. But, there was pa­per­work to be done, li­censes to be is­sued, forms to file. Once all was in or­der, I pho­to­copied the reg­u­la­tions defin­ing where and when I could vend po­lit­i­cal mer­chan­dise, packed up my in­ven­tory and set up sta­tion in Union Square.

I was promptly arrested.

No warn­ing or ticket or sum­mons. Just hand­cuffed and carted off to jail, where I spent the next eight hours contemplat­ing the er­ror of my ways.

I stayed off the streets un­til my court date, in which the case was dis­missed with the wave of a hand and the flick of a stamp. Feel­ing a new sense of con­fi­dence, I added the copies of my dis­missal to my port­fo­lio of doc­u­ments and went back to the streets. Within twenty min­utes, I was ap­proached by the po­lice again. This time, I wasn’t wor­ried. I gave them my (now fat­ter) folder, know­ing full well that this was a mis­com­mu­ni­ca­tion and I would be con­duct­ing free en­ter­prise momentarily.

So, when the of­fi­cer in­structed me to put my hands be­hind my back and hand­cuffed me, I de­manded an ex­pla­na­tion. His words, and I quote: “Just be­cause it was dis­missed, doesn’t make it legal.”

Af­ter an­other eight-hour jail stint, I be­gan to more se­ri­ously con­sider what street ven­dors and per­form­ers had been telling me about; be­ing chased by cops, ticketed, fined and im­pris­oned, and I won­dered how free speech and cen­sor­ship can ex­ist simultaneously.

New York City earned the moniker “the melt­ing pot.” Be­tween 1890 and 1920, 18 mil­lion new cit­i­zens flooded into her har­bor; Jews, Catholics, Irish, Ital­ian, German and East­ern Eu­ro­peans. They brought their lan­guages, their foods, their art and their dreams of be­com­ing Amer­i­can. As James Truslow Adams said in his 1931 book, The Epic of Amer­ica, “the dream of a land in which life should be bet­ter and richer and fuller for every­one, with op­por­tu­nity for each.”

It was dur­ing this time that street per­form­ing was el­e­vated to a new level. New York be­came the back­drop for or­gan grinders on the side­walk, ac­cor­dion play­ers on sub­way plat­forms and march­ing bands on the pave­ment. She was alive with the fla­vor of other cul­tures; teem­ing with the art of other ethnicities.

A decade later, as the coun­try did its free fall into eco­nomic chaos, New York was the cen­ter of the decline.

Truth is, peo­ple were poor. As a re­sponse, many turned to busk­ing as a way to make money. The streets be­came over­run, space was lim­ited, fights broke out and frus­tra­tions mounted. The gov­ern­ment re­sponded, cit­ing pub­lic safety is­sues and noise or­di­nances as rea­sons to ban busking.

How­ever, what is prob­a­bly more ac­cu­rate is that the gov­ern­ment did not know how to re­spond to street per­form­ers. Were they beg­gars, pan­han­dlers, per­form­ers or a threat to law and or­der? And in sim­ply not know­ing what to do with them, Mayor La Guardia did what gov­ern­ment of­ten does with things and peo­ple it doesn’t know what to do with—he out­lawed them.

On Jan­u­ary 1st, 1936, the artists were of­fi­cially the criminals.

De­spite pub­lic out­cry, ra­dio and me­dia sup­port for street per­form­ers, and judges dis­miss­ing cases left and right, the ban stayed in ef­fect for the next 34 years. Dur­ing FDR’s fire­side chats, dur­ing the beat move­ment, dur­ing the hip­pie move­ment, dur­ing Rosa Parks, dur­ing Mar­tin Luther King, dur­ing the Viet­nam War; all these things came and went, but the ban on New York street per­form­ing remained.

It wasn’t un­til 1970, when poet Allen Gins­berg chal­lenged the con­sti­tu­tion­al­ity of the ban (and won) that New York City Mayor Lind­say lifted it.

But the con­tro­versy was far from over. The ban was only lifted for street per­form­ers, not sub­way singers. The next 20 years saw the courts over­flow­ing with cases from sub­way singers, mostly be­ing dis­missed. In 1989, the New York Tran­sit Au­thor­ity pro­posed an­other ban; this time, sin­gling out mu­si­cians on sub­way platforms. Spon­ta­neous acts of crime such as jug­gling, po­etry read­ing and folk singing erupted. The Trans­porta­tion Au­thor­ity lis­tened, and then did some­thing remark­able: it com­pro­mised, of­fi­cially for­bid­ding only am­pli­fi­ca­tion de­vices on platforms.

To en­force this leg­is­la­tion, the NYPD would be armed with deci­bel level read­ers as well as nightsticks.

As Luke Ryan, the Fa­ther Time of un­der­ground busk­ing re­mem­bers, “the cops had to carry these big deci­bel read­ers to make sure we weren’t too loud, which I’m sure they loved—you know, chas­ing some­one down and pulling a deci­bel reader and then a train would go by. It re­ally didn’t work. It was ridiculous.”

Since the ban still re­mains in ef­fect to­day, I am very hope­ful of see­ing an NYPD Blue chas­ing down a sub­way singer with a deci­bel meter.

But, it was ridicu­lous, so in 1987, MUNY (Mu­sic Un­der New York) was born. MUNY is a pro­gram that al­lows mu­si­cians to legally per­form in the sub­ways. They au­di­tion, are se­lected, are given a per­mit, and then are sched­uled. The per­mits are free and a tax ID stamp is purely dis­cre­tionary. MUNY is like a mod­ern day Har­vey Dent of the un­der­ground; a char­ac­ter, who brings about good or evil based on a coin toss; you can’t re­ally love him, you can’t re­ally hate him.

Yet, there are some mu­si­cians who stub­bornly con­tinue to play with­out the MUNY bless­ing. They are ag­gres­sively pur­sued by NYPD and Tran­sit Po­lice. The bureau­cracy calls them free­lancers; I call them mu­si­cal pi­rates. And as I seek them out and chat with them, they speak the same lan­guage, share the same points and as­sert the same propo­si­tions. One con­sis­tent theme has to do with pub­lic space.

Pub­lic space is, by de­f­i­n­i­tion, an area or place that is open and ac­ces­si­ble to all cit­i­zens re­gard­less of gen­der, race, eth­nic­ity, age or socio-economic level. Parks, streets, town squares and sub­way plat­forms are con­sid­ered pub­lic spaces; places where the gov­ern­ment can­not limit one’s speech be­yond what is rea­son­able, includ­ing re­li­gious and po­lit­i­cal free speech.

In New York City, Cen­tral Park would be con­sid­ered a pub­lic space. Thoth, one of our fea­tured sub­way buskers, was ar­rested there and taken to jail on July 12, 2009, as boo­ing crowds gath­ered to watch him hand­cuffed and es­corted to a police van. Thoth has been per­form­ing in that pub­lic space for 12 years.

Union Square is also con­sid­ered a pub­lic space. And even though I had my green folder with the pho­to­copied city or­di­nance and maps, out­lin­ing the pa­ra­me­ters of this pub­lic space, it was also the space for my first ar­rest. If you’ve ever watched Friends, one of the open­ing im­ages is of the amaz­ing Wash­ing­ton Square—another pub­lic space.

“Wash­ing­ton Square is a place where peo­ple you knew or met con­gre­gated every Sun­day and it was like a world of music…bongo drums, conga drums, sax­o­phone play­ers, xy­lo­phone play­ers, drum­mers of all na­tions and na­tion­al­i­ties, po­ets who would rant and rave from the stat­ues. You know, those things don’t hap­pen anymore, but back then, that was what was hap­pen­ing. It was all street.” (Bob Dy­lan, rem­i­nisc­ing on Fourth Street Re­vis­ited.)

As the de­bate con­tin­ues un­abated, and we all await our next court dates, I re­al­ize that Obama and Dy­lan are both right.

The times, they are a changin’.