On The Front Lines

VICTORY: Court Issues Permanent Order Requiring Metro Authorities to Allow ‘Busker’ Street Musician to Perform at DC Metro Stations

WASHINGTON, DC — In a resounding win for the First Amendment, a federal court judge has granted The Rutherford Institute’s request for a permanent injunction against the Washington Metropolitan Area Transit Authority (WMATA) barring Metro officials from preventing guitarist Alex Young from engaging in “busking,” or performing in public places for tips, near DC-area Metro stations. The permanent injunction, entered by U.S. District Court Judge Beryl Howell, comes on the heels of WMATA’s concession that it would not challenge Judge Howell’s prior ruling, in which she concluded that restrictions on Young’s busking under a WMATA rule forbidding “commercial activity” near Metro stations violated the First Amendment. Attorneys for The Rutherford Institute attorneys filed suit against WMATA in July 2014, arguing that the above-ground, “free” areas of WMATA transit stations where Young performs are traditional public forums where members of the public are entitled to engage in speech and expression under the First Amendment. Affiliate attorney Jeffrey L. Light assisted The Rutherford Institute in its defense of Young’s First Amendment rights.

“In an age when journalists are being persecuted by the government for protecting their sources, activists are having their communications monitored by government agents, and musicians who criticize police state tactics are being charged with making unlawful threats, this ruling is a timely reminder of how critical the First Amendment truly is and how vital it is that we remain vigilant in defending it at every turn,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “As Benjamin Franklin proclaimed, ‘Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech.’”

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 alleged 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.