Freeing a Busker's Free Speech Rights: Impact of Regulations on Buskers' Right to Free Speech and Expression

Abstract

Buskers are street performers who are performing for money — they are not panhandlers. Unfortunately though, they are being treated as such. Cities and municipalities are effectively infringing upon buskers’ free speech and expression rights under the First Amendment by promulgating vague or inadequate regulations that ban conduct often intertwined with busking. For example, officers enforcing these regulations can validly lump a busker’s conduct into an anti-panhandling regulation. Therefore, an intricate balance must be struck in order to justifiably further the governmental interests at play and honor buskers’ guaranteed free speech and expression rights under the First Amendment.Cities and municipalities are doing the courts no favors in this busker dilemma. The regulations that are regularly implemented inevitably result in litigation. Then, the regulations force courts to define indefinable concepts: art and expression. To help alleviate the courts’ definitional crisis, cities and municipalities should promulgate regulations aimed directly at advancing the governmental interests that necessitated the regulation, as opposed to aiming regulations at particular types of conduct. This would be a much-needed solution for the courts, and would also properly strike the balance between government interests and buskers’ free speech rights. Throughout this Article, the case law directly impacting and shaping buskers’ free speech rights is thoroughly dissected. Then, the proposed solution to appropriately strike the balance between government interests and buskers’ free speech rights is elucidated. Last, the current case law and proposed solution are applied to the pending busker case of Young v. Sarles, to exemplify the problems of the current approach and illuminate the ease of the proposed “advancing the interest” approach to this busker dilemma.