Sing a Song of Freedom

A man gets arrested. He's handcuffed, thrown in the back of a cruiser, fingerprinted, put in a cell, held for 18 hours, charged with disorderly conduct and then released.

Happens all the time in Philly.

Except this guy's crime was different.

He refused to stop singing in Rittenhouse Square park.

And since his arrest the police have kept anyone else from playing music there, too.

The trouble began on March 27. After spending the day busking — playing music for money — in Suburban Station, musicians Anthony Riley and Robby Torres headed over to Rittenhouse Square park. The park is well-known as a focal point for area musicians and music students. They come to play, meet other musicians, enjoy themselves and entertain passersby.

"It's a special community of art and music," says Drew Gillis, a local musician who plays in the band Stone Soup with Riley and Torres.

Riley was singing Sam Cooke's "A Change Is Gonna Come" a cappella around 9 p.m. when Philadelphia Police Officer Greg Wilkinson of the Center City District told him he had to stop. Riley refused to stop singing, noting that the city ordinance governing street musicians lets him sing until 10 p.m.

Wilkinson disagreed, and as a crowd began to form around their argument Wilkinson reportedly said, "I create the law in this park."

"One officer decided to be judge, jury and executioner," says Riley. "It's a violation of my First Amendment rights, my freedom of speech."

Wilkinson called for backup and then, citing the disturbance Riley's refusal was creating, arrested him.

The City Paper cover story, Is Change Gonna Come?, details the travails of the musicians in Rittenhouse Square. Discussing the disorderly conduct charges against Riley, Phillyist, in Quaint Contributors to City Ambiance... Or Merely Melodious Riff Raff?, notes:

He is, apparently, one of several criminals (read: victims) recently caught by police in an attempt to quell the evil uprising of mimes, musicians and street-based merry-makers terrorizing our city's wealthier residents.

Yes, Riley is not, it seems, alone in his artful rebellion. Felix Wilkins was arrested last month for attacking hapless passersby with the vicious classical sounds of his beloved flute.

Dan Rubin, formerly of Bling, has been following the story, reports that the singer was acquitted, Rittenhouse Square singer is acquitted:

Municipal Court Judge Karen Simmons found the 20-year-old not guilty of disorderly conduct, saying: 'This is America, not Afghanistan.'

Riley faced a three-month sentence for the March 27 incident, which has caused the city to review what sorts of music can be performed throughout Fairmount Park.

Arresting Officer Greg Wilkinson testified that Riley was singing so loudly that he drowned out the police radio. 'All he had to do was lower his voice and this never would have happened,' said prosecutor William James.

Witnesses called by the defense testified that when Riley asked what the law was, Wilkinson said he was the law. When Riley asked whether he was still in America, the officer replied: 'This is Afghanistan.'

Rubin first covered the story a few weeks ago in his column, Balancing rights of freedom to sing. He interviewed a resident of a Rittenhouse Square condo who objects to the music in the Park. The acoustics in his 11th floor apartment are such that the music carries into the rarefied air of his home. He and other Rittenhouse Square residents who have complained about "noise" in the Park are apparently the reason that the police silenced the music. Right -- they live above the park -- in Center City -- and want the sounds of silence? They must be part of the influx of suburbanites moving into Center City, expecting to find a mini-suburban in the city.

With the acquittal of Riley, the story would be over -- except that this is Philly. Rubin's latest piece covers the "opinion" of the City Solicitor's Office spelling out the rules that now apply to singing in the Park. In City's anxiety over performance, Rubin writes about the cacophony of the rules:

In an attempt to balance the rights of musicians, neighbors, and urban nature-lovers, the city law office has opined that singing or strumming a guitar is permissible without a permit, as long as no one is performing.

What's performing?

Good question. Here's some guidance from the city's lawyers: If a group's passing around a hat for tips, that's performing. If it passed out flyers in advance, that's performing. If it's using amplifiers, that's performing.

If it attracts more than "a handful" of people, that's performing.

* * * *

"Handful" is not an iron-clad legal concept. . .

It's a little puzzling for the rules to say that singers get into trouble once they start attracting a crowd. Will a good singer face more problems than a bad one?

The city's interpretation is fuzzy enough that when NPR wanted to tape Riley doing his thing last week, defense attorney Evan Shingles refused to let his client sing in Rittenhouse Square for fear that the 20-year-old would be arrested again.

Then there's the little issue of the First Amendment. You know, that whole freedom of speech thing. Rubin spoke to ACLU staff attorney Mary Catherine Roper about the regulations:

It also will make police officers' jobs harder, she said.

How will musicians know how many people to invite to hear them sing? she asked. How will they know they're crossing the line when they open their guitar cases? And how quickly must they shut their cases before they get cited for illegally performing?

Roper insists that singing is speech, and as such is protected by the First Amendment. "Try," she said, "to imagine a law that said you can go to the park and talk to yourself or talk to a friend or two, but that you can't have a meeting or give a speech if you want more than a handful of people to listen to you."

The point of the First Amendment, she added, is to protect our ability to speak to "more than a mere handful of others" when we have something to say.

She dug out this U.S. Supreme Court opinion, from 1939: "Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens."

Ah yes. In the words of Judge Simmons: This is America, not Afghanistan.

(You can hear the story of the arrest, as well as Riley sining "A Change is Gonna Come" on NPR)

Tags: Philadelphia, Philly, News