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On The Front Lines

VICTORY: Court Orders Metro Authorities to Allow ‘Busker’ Street Musician to Continue Performing at DC Metro Stations

August 15, 2014

WASHINGTON, DC — In a resounding win for the First Amendment, a federal court judge has granted a request by Rutherford Institute attorneys to enjoin the Washington Metropolitan Area Transit Authority (WMATA) from preventing guitarist Alex Young from engaging in “busking” near DC-area Metro stations.

In granting the request, Judge Beryl Howell rejected the government’s claim that the time-honored practice of busking, or performing in public places for tips, is “commercial activity” in violation of WMATA’s Use Regulation policies.  By the order, Judge Howell has required WMATA officers to stop instructing Young that he cannot engage in busking near Metro terminals for the duration of the pending lawsuit.

Rutherford Institute attorneys filed suit in U.S. District Court for the District of Columbia 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.

The judge’s order in Alex Young v. Richard Sarles is available at www.rutherford.org.

“In the midst of the crisis taking place in Ferguson, where even journalists are being muzzled at gunpoint, this victory serves notice to the police state that free speech and the rule of law still count for something in America,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “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, journalists or whistleblowers.”

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.