Musicians stumble across Somerville law conflicting with First Amendment
Street performers have rules to follow in Cambridge, including hours, noise levels and having to pay $40 per year, per person for a permit, but the rules when crossing over the border into Somerville have revealed a surprise that might be an outright violation of the First Amendment of the United States.
“It’s the most ridiculous ordinance,” said Roger Nicholson, the former Cambridge Community Television personality who plays guitar in Somerville’s Davis Square on weekends. He’s seen performers (including himself) run afoul of it a few times in recent years, confused by police responding to isolated citizen complaints and enforcing rules about permits that don’t exist at City Hall.
But Nicholson’s complaint this week to Rebekah Gewirtz, the alderwoman whose Ward 6 includes Davis Square, turned up something alarming: Section 8-121 of Somerville’s municipal code, in place since at least 1963, giving the city’s aldermen sole power in deciding whether people can preach, sing, play an instrument or even hold a meeting “in a street or other public place, except in connection with a funeral or a military parade, and except in connection with a procession of a political, civic or charitable organization for which a police escort is provided by the chief of police.”
“I have considerable concerns about that with respect to First Amendment rights to free speech,” Gewirtz said Friday.
As with Cambridge’s City Council, aldermen in Somerville are on a summer break from a regular meeting schedule. At the first scheduled meeting back, Sept. 13, she will likely be asking for repeal of the ordinance.
“In the meantime, I have asked the Law Department to review this ordinance for its constitutionality,” she said, noting her support as well for enforcement of noise ordinances and other quality of life laws. “It looks to be a pretty onerous ordinance on our books limiting people’s free speech. Again, I’m going to get a legal opinion on that … There could be a way to interpret this that doesn’t violate the First Amendment.”
The First Amendment to the U.S. Constitution is the linchpin of rights to free speech and public assembly, among other things, and the local law’s apparent infringement on it outrages Nicholson (who, as longtime watchers of his Sunday night “Cambridge Rag” show would attest, is prone to outrage). “Someone out there’s not allowed to preach on the street?” he said. “Can you imagine?”
“The First Amendment is the price you pay to live in this great country,” he said, speaking to the citizens complaining about street performers.
A year ago, he said, when playing guitar and singing in Davis Square and encountering a noise complaint, he went to City Hall and was told by the city clerk he didn’t need one and that such permits didn’t exist. With complaints so rare, he recalled the clerk saying, there was no need for one unless an alderman asked that they be created.
It makes sense that complaints from Davis Square would be uncommon. On a warm summer night, Nicholson and other performers set up a microphone in the middle of the brick plaza amid sculpture, happy listeners, moviegoers and those enjoying ice cream and burgers from surrounding eateries. It’s an idyllic scene, sometimes with hula hoopers dancing gracefully in front of the musicians, and a reason people visit and linger. When it gets late, the microphone is packed away and performers carry on with acoustic sets.
“It’s an attraction to the area,” Gewirtz said of the performers. “Davis Square has an incredibly authentic feel about it. We haven’t been overrun by chain stores so it looks like some outdoor mall. Everything’s locally owned and operated, there’s more artists per capita in Somerville than anywhere else in the state, possibly than in the region, and it’s a big draw — people being out there that way, musically. I do prioritize that cultural vibrancy in Davis Square.”
Last weekend, though, in a scene recounted by Nicholson and confirmed by another musician on the scene, the performer after Nicholson was approached by a police officer and cut off mid-song, with the officer citing a citizen complaint and the need for a permit. “He wasn’t pleasant, he wasn’t polite,” Nicholson said, and when Nicholson stepped forward to protest, the officer threatened him with jail for disorderly conduct.
Being asked for a permit “I don’t think should be the case and hasn’t been standard operating procedure in Somerville,” Gewirtz said. “Just turn off the amplification at 10 p.m.”
The complete current ordinance:
No meeting shall be held and no person shall deliver a sermon, lecture, address or discourse, or shall sing or play or perform on any musical instrument, in a street or other public place, except in connection with a funeral or a military parade, and except in connection with a procession of a political, civic or charitable organization for which a police escort is provided by the chief of police, unless licensed thereto by the board of aldermen, as hereinafter set forth.
Such license may be made subject to such conditions and restrictions, as to time, place, duration of the license, number of performers, or otherwise, as the board of aldermen shall deem best. A collective license may be granted to a charitable or religious organization to sing or to play on musical instruments in the streets in connection with processions or meetings, with such limitations or restrictions as said board may deem advisable; and in such cases the license fee which shall be set from time to time and which is on file in the city clerk’s office may be remitted, in whole or in part, at the discretion of the board of aldermen.