Saugatuck Street Musicians Have a Right to Free Speech, ACLU of Michigan Argues in Federal Lawsuit

December 17, 2014

GRAND RAPIDS, Mich. — Seeking to protect the free speech rights of street musicians, the American Civil Liberties Union of Michigan filed a federal lawsuit against the City of Saugatuck today on behalf of two accomplished college musicians who were prohibited by local police from performing and accepting tips on the public sidewalks. One of the musicians was even jailed for a weekend.

Watch our video of viola player Christopher Waechter and guitarist Gabe Novak talking about the case

“Silencing artists for playing music in public is an egregious violation of free speech principles,” said Michael Steinberg, ACLU of Michigan legal director. “Few freedoms are as enshrined in American tradition as our right to express ourselves on public sidewalks. If the City of Saugatuck’s policies are allowed to stand, police officers could arrest Christmas carolers simply for singing ‘Silent Night’ on a city sidewalk.”

The lawsuit, filed on behalf of viola player Christopher Waechter and guitarist Gabe Novak, asserts that the city violated the performers’ free speech rights by enforcing a “public entertainment ordinance” designed for business establishments against street musicians. The ordinance requires businesses that wish to provide public entertainment to apply for a license 60 days before the event and to provide proof of liability insurance, a corporate surety bond, sufficient toilet facilities and off-street parking. Although the law is clearly not intended to apply to street performers, city officials, in separate incidents last summer, ordered Novak and Waechter to stop playing because they did not have business licenses.

In the first incident, which took place last June, Novak was arrested in downtown Saugatuck and jailed for three days for performing in public. The day before his arrest Novak, a 19-year-old music major, was told by city planning director Michael Clark that he couldn’t perform on the public sidewalk without a license.

After researching the law at his family’s home in South Haven, Mich., Novak returned to downtown Saugatuck the next day with a written statement listing numerous court decisions striking down license requirements for street musicians as unconstitutional. Novak placed the statement and a small sign that read “Music is Expression” on his open guitar case.

Shortly after he began playing, Novak was approached by a Saugatuck police officer. When Novak attempted to verbally assert his right to free speech, he was arrested and held in Allegan County jail from Saturday until Monday. Though he’d never physically resisted the officer, Novak was charged with resisting and obstructing a police officer, a felony that was later reduced to a misdemeanor charge of disturbing the peace.

“I had to spend three days and two nights in jail for playing guitar and entertaining families on vacation,” said Novak, a student at the prestigious Cleveland Institute of Music. “The fact that other musicians and I would be arrested for entertaining people in public spaces is beyond me. Free speech is essential. If we don’t have public spaces, where are we going to express ourselves?”

Days after Novak’s arrest, on the Fourth of July, Waechter was also targeted by police and prevented from playing his viola on the public sidewalk. The same officer who had arrested Novak told Waechter, who spent two years as first chair viola for the Hope College orchestra, that he was forbidden from playing on the sidewalk without a license. As a result, Waechter packed up and left. Fearing arrest over the permit ordinance, Waechter has not returned to play in Saugatuck.

“There is, of course, a sad irony in the fact that Chris was denied the right to express himself on the very same day we celebrate American freedom,” said Steinberg.

The lawsuit asks the court to declare that applying the local public entertainment ordinance to individual street performers is a violation of the musicians’ right to free speech as well as their right to due process. Both musicians would like to return to Saugatuck to play again.

In addition to Steinberg, Novak and Waechter are represented by ACLU of Michigan staff attorney Marc Allen.

Read the legal complaint 
View videos and more at the casepage