On The Front Lines

The Rutherford Institute Asks Court to Reject Government’s Claim That First Amendment Does Not Apply to ‘Busker’ Street Musicians at DC Metro Stations

WASHINGTON, DC — Attorneys for The Rutherford Institute have asked a federal court to reject the government’s claim that busking, the time-honored practice of performing in public places for tips, is not expressive activity protected by the First Amendment. Specifically, Institute attorneys have asked the U.S. District Court for the District of Columbia to deny the Washington Metropolitan Area Transit Authority’s (WMATA) motion to dismiss a lawsuit filed on behalf of a young street musician who was threatened with arrest and prosecution for “busking” near train stations. Insisting that the above-ground, “free” areas of WMATA transit stations where guitarist Alex Young performs are traditional public forums where members of the public are entitled to engage in speech and expression under the First Amendment, Institute attorneys filed the First Amendment lawsuit in July 2014.

“We would do well not to underestimate the power of music, literature, film and art to speak truth to power. Historically, these have been the instruments of societal change and revolution. Understanding this, America’s founders ensured that expressive activities, no matter what the medium—whether it’s spoken, written, sung, painted or played—are clearly protected by the First Amendment,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “At a time when the government spies on its citizens, monitors their activities, treats them like suspects, and denies them fundamental rights, it’s not surprising that the government would clamp down on free speech activities, even of the musical variety. However, if we are to have any hope of salvaging our freedoms, it is more critical than ever that we stand up for the rights of those who dare to speak up and challenge the status quo, whether they be artists, activists, or government whistleblowers. To quote George Orwell, ‘In a time of universal deceit, telling the truth is a revolutionary act.’”

Alex Young is a 27-year old guitarist who performs in public and accepts donations from passersby. Although Young does not actively solicit donations, he does set out his open guitar case in order to receive tips from members of the public who enjoy his performance. Among the places where Young performs are the above-ground, “free” areas of WMATA transit stations.  According to regulations promulgated by WMATA’s governing authority, persons are allowed to engage in “free speech activities” on WMATA property, so long as the activity is in above-ground areas and is at least 15 feet from a station entrance, escalator or stairway. 

According to the complaint, Young was busking at the Ballston Metro station on the sidewalk abutting N. Stuart Street in November 2013 when he was approached by a Transit Police officer and ordered to cease playing and accepting tips. The officer accused Young of engaging in “panhandling” and threatened to arrest him if he did not move elsewhere.  In a separate instance in October 2013, Young was ordered to cease his public performing at the West Falls Church Metro Station. A Transit Police officer told Young that because he was accepting donations, he was engaged in “commercial activity” that is prohibited by WMATA regulations.

In filing suit against WMATA, Rutherford Institute attorneys allege that the above-ground, free areas of Metro Stations are considered traditional public forums, areas where speech and expression is given special protection by the U.S. Constitution’s First Amendment.  Additionally, Young’s performing in public, or “busking,” is a time-honored activity that courts have consistently found to be fully protected by the constitutional guarantee to freedom of speech. Affiliate attorney Jeffrey L. Light is assisting The Rutherford Institute in its defense of Young.

The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated.