For the third time in five years, the ACLU of Rhode Island has sued the City of Providence for interfering with the exercise of free speech rights on the City’s streets and sidewalks.
Today’s lawsuit was filed on behalf of Manuel Pombo, a 62-year-old local street musician (or “busker”) who has been arrested once, and threatened with arrest on numerous other occasions, for playing his saxophone on sidewalks and street corners in Providence.
The lawsuit, filed in U.S. District Court by ACLU/RI volunteer attorneys Shannah Kurland and John W. Dineen, challenges the legality of a “permission to perform” license Pombo first obtained from the city Board of Licenses over twenty years ago. The license not only prohibits him from soliciting donations for his performances, it allows him to perform solely at the unbridled discretion of police officers.
Pombo has performed regularly at WaterFire and on public sidewalks outside the Dunkin Donuts Center, PPAC and many other places around the City. Since the 1990’s, Pombo has sporadically been ordered by police officers to stop playing at various locations around the city, and he has always complied to avoid arrest. In recent years, however, the harassment has escalated significantly.
In July 2013, he was arrested without warning for playing on a public sidewalk and charged with disorderly conduct and refusal to exhibit a peddler’s license. The charges were ultimately dismissed. Last summer, a Providence police officer stopped Pombo at least five times when he was busking on public property at various locations. Since March of this year, he has been ordered to stop playing at least three times, prompting him to finally seek legal assistance.
The ACLU lawsuit argues that the Board of Licenses’ permitting requirement constitutes an unconstitutional prior restraint of speech, that Pombo cannot be barred from soliciting donations for his performances, and that the complete and arbitrary discretion given police to determine when he can play in public violates Pombo’s free speech and due process rights.
Among other things, the lawsuit seeks a court order allowing Pombo to exercise his right “to perform on public property, free from harassment or orders to move by police,” and declaring the “existing permitting and enforcement policies and practices” to be “in violation of established interpretation of the First Amendment.”
Pombo said today: “I have been performing in Providence for over two decades, but the level of police harassment has escalated enormously in the past two years. I love to play the saxophone and I know that it has brought joy to many people. But I now live in constant fear of being arrested for playing my music, and it takes a physical toll on me. This is not the way a city that claims to be arts-friendly should treat anybody.”
Attorney Kurland added: “It's past time that the City of Providence learns that not only is respecting the Constitution the right thing to do, but that when they fail to train police officers in how the First Amendment works, it costs taxpayers money we could put to much better uses."
ACLU attorney Dineen said: “Providence is following in the footsteps of the Roman Empire and Henry VIII in trying to ban and regulate buskers. Mr. Pombo has Benjamin Franklin, Bruce Springsteen, Paul McCartney, and Sting as models. If busking was good enough for Benjamin Franklin, it should be good enough for Providence.”
The lawsuit marks the third legal battle the ACLU has had with the City in the recent past. Two years ago, a federal judge agreed with the ACLU that Providence police violated the free speech rights of a local resident when she was barred from peacefully leafleting on a public sidewalk in front of a building where then-Mayor David Cicilline was speaking. Last year, the ACLU sued the Providence Police Department for violating the free speech rights of protesters at a fundraiser in Roger Williams Park for then-Gubernatorial candidate Gina Raimondo.
