Judge puts hold on street performer requirements

Street performer Frederick Walker playing outside Crown Candy Kitchen Wednesday at the noon lunch hour. “This is raw. They see me, I see them. It’s great!” Walker has been street performing for two years. Photo By: KAREN ELSHOUT

For the time being, street performers no longer need to purchase a license to perform in St. Louis City.

U.S. District Judge Catherine Perry today put a hold on St. Louis ordinances requiring permits for street musicians, saying musicians had a good case that the ordinances violated free speech rights. She also ordered mediation.

Two musicians sued after the annual fee required to get a permit for street performance quadrupled from $25 a person to $100. The lawsuit, filed by attorneys with the American Civil Liberties Union of Eastern Missouri, also objects to what musicians said was a requirement that performers audition before a Street Department official.

The plaintiffs are likely to succeed on the merits of a First Amendment claim that the ordinances grant “excessive discretion” to an administrator deciding whether to issue a permit, Perry said in a memorandum.

“On its face, the St. Louis street performance ordinance does not grant discretion to the administrator, but the evidence shows that in practice the administrator does exercise discretion,” Perry wrote.

City employees have told performers that they must audition as part of their application, Perry said. She pointed out that Michael Hulsey, assistant to the Street Department director, testified that he asked for changes to at least one performance because he said it would be too dangerous.

“Hulsey cited as an example a juggler who wanted to incorporate fire or chainsaws into his act; I assume Hulsey did not ask this person to perform with either when he applied for the permit,” Perry said in a footnote.

At a three-hour hearing July 12, Assistant City Counselor Dan Emerson argued that the permit process and funding was needed to prevent a “Wild West” atmosphere.

One witness, saxophone player and plaintiff Frederick Walker, bolstered Emerson’s argument when he said that performers had ways of handling territorial disputes.

“Ever been hit in the head with a saxophone?” Walker said.

The case is Nick Pence and Frederick Walker v. The City of St. Louis, 4:13-cv-00871.