There was busking in Fountain Park in Chestertown on Saturday and it was quite pleasant, according to visitors to the Farmer’s Market, many who said the permitting process for music “was really unnecessary and out of place for the little town of Chestertown.”
WCTR’s Keith Thompson appeared and played his guitar for onlookers who occasionally tossed a dollar into a hat, which is considered “passive solicitation” and protected free speech under the Constitution, according to lawyers for the ACLU and the Rutherford Institute, who implored Mayor Margo Bailey last week to stop enforcing the town’s permit ordinance.
Thompson’s busking is not affiliated with WCTR and tips from Saturday’s busking were donated to the Relay for Life.
ACLU attorneys on Friday told Chestertown Mayor Margo Bailey that musicians may gather in Fountain Park and play for tips, without need for a permit, because it is protected free speech under the Constitution.
“As you may be aware, the First Amendment to the Constitution protects both the right of performers to engage in free speech in public fora, and the right to solicit funds,” wrote Maryland-ACLU Legal Director Deborah A. Jeon in her Sept. 14 letter to Bailey and Town Manager Bill Ingersoll.
The ACLU’s involvement stems from an incident at Fountain Park on June 9, when according to the ACLU, Bailey demanded twice that 12-year-old Casey Ottenwaelder stop playing her guitar and remove a hat Casey had made visible for tips. When Casey’s grandmother allowed her to continue playing, Bailey returned and asked why Casey was not “obeying” her. Bailey said she was the “boss” of the park and young Casey began to cry after an abrasive exchange between Bailey and Casey’s grandmother. The account also alleges that Bailey swore at the Ottenwaelders.
The ACLU took aim at the entirety of the Streets and Sidewalk Code of Chestertown 145-13: “It shall be unlawful for any individual, association, corporation, or organization to use streets, sidewalk, public right of ways, or town owned property, for any event without first obtaining a permit from the town.”
The ACLU letter, citing two decades of case law, says the ordinance violates all forms of free speech and not just music.
“Because the ordinance purports to apply to all forms of speech and conduct in public places, without limitation, it is an unconstitutional prior restraint on free speech and should be revoked immediately,” the letter said.
Limited use of permits is only allowed when managing competing uses, but the town ordinance is broad and “prohibits uses of any kind,” the letter said.
Rutherford Institute Weighed in on Monday
While town officials were still digesting Friday’s letter from the ACLU, A staff attorney from the Rutherford Institute piled on more legal precedent against the town’s permitting process on behalf of WCTR’s Keith Thompson, who was also prohibited from playing in Fountain Park for tips and later denied a permit. Thompson’s freelance performances are not connected with WCTR.
Rutherford Staff Attorney Douglas McKusic demanded an immediate end to the town ordinance.
“Fountain Park is a traditional public forum where First Amendment rights are given the fullest protection,” McKusic wrote. “Courts have long recognized that public parks and streets have immemorially been held in trust…for the use of assembly and communicating thoughts between citizens.”
McKusic said the public right of free speech in Fountain Park cannot be changed, even during the limited time set aside for the Farmers Market on Saturdays.
He also said the banning of “passive” solicitations for street performances was struck down in Chase v. Town of Ocean City in 2011 and in Berger v. City of Seattle in 2009.
“Expressions that solicit funds is protected by the First Amendment,” McKusic said. In Chase the court ruled…that a ban on a street performers soliciting and accepting compensation for paintings was unconstitutional.
“It is obvious then that the passive solicitation and acceptance of donations by musicians [known as busking] is similarly protected,” McKusic said. “It is offensive to the First Amendment that a citizen must inform the government of his or her desire to speak to other citizens and obtain a government permit to do so.”
McKusic said enforcement of the town ordinance should “cease immediately” and he demanded a response from the town by Friday in order to advise his client, Keith Thompson, before the start of Saturday’s Farmer’s Market.
Town Manager Responds
Ingersoll responded to McKusic that the matter would be taken up by the Mayor when she returned from leave in Florida.
“It is not the intent of the Town of Chestertown to limit any individual’s right to freedom of speech,” Ingersoll wrote in his response on Monday.
Chestertown Attorney Stewart Barroll advised the council not to discuss the matter at Monday’s council meeting—since Thompson and the Ottenwaelders were being represented by the two organizations.
Don Gear, of the original artisans group that sought permits to play in the park, appeared before the council on Monday as a courtesy to say they would be performing on Saturdays until Christmas and asked if there would be any conflicts.
“We will adhere to such common sense guidelines as maintaining low-to-moderate volume,” Gear said. He said there would be busking “as it is our First Amendment right.”
Although council members could not speak because of ongoing legal questions, Ingersoll said “there won’t be any problems this weekend.”
Thompson said he was looking forward to playing and donating Saturday’s tips to a good cause.
“I’m looking forward to finally getting to play at the Farmer’s Market, as I originally planned to do in June, before I was told I couldn’t play for tips,” Thompson said. “For me, tipping is important to give a value to the art and to give me a performance gauge to let me know how well I’m connecting with the audience. Since Relay For Life is happening this weekend in Kent County, I will donate the tip money I earn to the Relay for Life.”