TRI In The News

D.C.-Area Busker Wins Round in Suit Against Metro Ban on Accepting Tips Near Stations

August 22, 2014

Alex W. Young, who makes his living with a guitar and a song, says he finally got tired of being shooed away from Metro stations by police officers.

He saw no harm in what he was doing — playing music for tips outside subway entrances, his instrument case open at his feet. Buskers are part of the traditional fabric of public transportation in America, Young says. And with a lawyer by his side, he has gone to federal court, intent on proving his point.

“All I’m doing is, I’m entertaining people,” says the 27-year-old performer. “And by having my guitar case open, what I’m saying is, ‘I’m just trying to brighten your day, and if you’d like to support my music, you can donate.’ ”

To the Washington Metropolitan Area Transit Authority, however, Young was violating Section 100.10 of the Regulations Concerning the Use of WMATA Property, which decrees, “No individual carrying out free speech activity will carry out any commercial activity.” You want to strum your Gibson and belt out tunes on Metro-controlled sidewalks near stations? Go right ahead. But no money shall change hands.

No quarters, no dimes, no wrinkled dollar bills.

Young’s lawsuit, filed July 16 in U.S. District Court in Washington, challenges Metro’s busking ban on First Amendment grounds. Although a resolution of the matter could be years away, Young won an early round in the fight: On Aug. 14, a judge issued a preliminary injunction that allows buskers to perform on Metro property while the case is pending, provided they don’t stand within 15 feet of station entrances.

“Unfortunately, we are unable to comment due to the litigation,” Metro spokesman Dan Stessel says, declining to discuss the rationale for prohibiting street musicians from accepting tips near stations. “I can say we are looking forward to a trial on the merits of the case, and, in the meantime, we are complying with the court’s order.”

Rules on busking vary widely at subway systems across the country. Some transit agencies issue licenses to performers. In New York, no permission is needed. Anybody can show up, even on platforms, to sing, dance, play the musical saw, whatever, as long as the act isn’t a nuisance to public peace and safety (“peace” being highly relative in the Gotham subway).

Metro’s regulations appear to be among the most restrictive. The insides of Metro stations, which aren’t considered public forums, are off-limits not only to political campaigners, leafleters and soapbox haranguers but also to artistic performers, although station managers sometimes look the other way.

As for land outside stations but under Metro’s jurisdiction, the rules say, “All free speech activities are to take place at a distance greater than 15 feet from any escalator, stairwell, faregate, mezzanine, kiosk or farecard machine.” Metro property beyond that 15-foot buffer is called “the free area,” open for “free speech activities,” including music playing, but not for commercial ventures, except by Metro-licensed vendors.

Metro “has adopted a broad definition of the term commercial activity” to include busking, a transit authority attorney told Young’s legal advocates in a letter.

Under a program dubbed “MetroPerforms,” the agency holds annual auditions and chooses a small number of musicians to perform within the 15-foot buffer outside stations in warm-weather months. But the musicians are barred from accepting money, and their appearances are scheduled by Metro.

The crux of Young’s lawsuit is whether busking is mainly a form of artistic expression, protected by the Constitution, or primarily a moneymaking endeavor.

Young’s attorney, Jeffery L. Light, who is affiliated with the Rutherford Institute, a Charlottesville group that advocates for civil liberties, says Metro’s ban on busking has not been put to a full legal test in the 38-year history of the Washington area subway.

The institute’s founder and president, lawyer John W. Whitehead, says he readily agreed to take up Young’s cause “because I’m a free speech purist, and whenever people talk, or sing, it implicates the First Amendment.”

Whitehead says: “We live in a country where it’s sometimes tough to make a living. People who are out there honestly trying to do it, playing the guitar and making nice little sounds, I don’t know why anyone would be offended or want to curtail it.”

In a letter to the Rutherford Institute, Bruce P. Heppen, the transit police department’s chief legal counsel, said Metro has done nothing unconstitutional.

Metro has “the right to adopt rules and regulations for the safe, convenient, orderly use of its transit facilities,” Heppen wrote. Given the agency’s “broad definition” of commercial activity,” he said, “Mr. Young’s First Amendment rights were not violated.”

Young, who grew up singing in choirs, says he became a professional musician after graduating from West Potomac High School in Alexandria in 2005. “I just don’t free perform,” he says. “I play at senior centers. I play at church retreats. I play in bars and at farmers markets” from Maryland to North Carolina. Between gigs, he busks, and the tips he collects make up an important part of his income, he says.

He has performed near the Orange Line stations in Vienna, West Falls Church and Ballston many times in recent years. “For a while, I didn’t have any interactions with the police,” he says. Then last fall, “all of a sudden, I started getting interactions. And the problem was, I never got a straight story from the police.” When he asked why he had to leave, he says, officers gave him varying explanations.

“One time, they were like, ‘We don’t allow panhandling.’ They said what I was doing was musical panhandling with a guitar.”

Panhandling? “To be honest, I felt really upset,” Young says. “Like they were insulting me. Because panhandling is basically begging. ‘Gimme a dollar, gimme a dollar.’ All I was doing was singing, playing my guitar, playing my music.”

He says a friend of his, a fellow street performer, got help from the Rutherford Institute a few years ago in a legal fight with officials in Ocean City, Md., over busking on the boardwalk there. The friend referred Young to the Charlottesville group.

And soon, he was standing before U.S. District Judge Beryl A. Howell, who ruled in her preliminary injunction that the show must go on.

On a good day, in five or six hours of busking near a Metro station, Young says, “I might get upwards of triple digits” in tip money. “I play my original music. I play pop. Country is my main genre. And I play classic rock. I play oldies and contemporary Christian. I know how to play over 10 hours of music. So I’ll be out there a while.”

Now, when he opens his guitar case for donations near Metro stations, there’s a two-page legal document — an injunction — resting on the felt, visible to any transit officer.

“I keep it with me at all times,” Young says.