A Civil Libertarian Looks at Street Performers and the First Amendment

The First Amendment consists of 45 words added to the Constitution of
The United States by the Founding Fathers:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

It was primarily crafted by James Madison as one of 10 amendments known as the Bill of Rights. This document set the tone for the relationship between government and the American people, a relationship in which the people’s civil rights would be as paramount as the rights of the governing body. By adding the Bill of Rights to the Constitution, the founding fathers basically restrained the government’s ability to interfere in the lives of citizens.

So how are we to regard these freedoms as seen through the lens of the recent abridgment of these rights by the Santa Cruz City Council? Dimly to be sure. For it seems that blind obeiscence to the Commerce Clause of that same Constitution has overridden any claim to speech and assembly in our community. From the iconic local figures such as Tom Noddy and the Great Morgani to the lesser-known and often nameless musicians who add life and vibrancy to our downtown, all are now subject to the seemingly myopic view that business interests must prevail over all. And how, you may ask, does that square with the 45 words handed down to us by the Founding Fathers?

Thomas Jefferson said that the freedoms of speech and assembly provided by the First Amendment created a “great marketplace of ideas where each person was free to gather and exchange his or her ideas and opinions free of interference by one’s government”. As much in his day as in ours, street musicians were an essential part of the social fabric. So much so that great volumes of case law and literature have grown up around the preservation of those rights particularly as applied to those who street performers and vendors entertain and brighten our daily lives.

Another equally famous American wrote, “This land is your land, this land is my land, from California to the Gulf Stream waters…” Woody Guthrie was in his own right as great a civil libertarian as Jefferson but his words ring hollow in this part of California if they ring at all.

As Americans and as Santa Cruzans, we cherish the freedoms guaranteed by the First Amendment and never more so than when the timeless vehicle of music conveys them to us. In these days when we find our collective commitment to freedom tested we must not falter lest the only music to be heard in our city will be the sounds of silence.