Rick “Harpman Hatter” Bocook, equipped with his iconic harmonica and top hat, stands on a semicircle on the sidewalk behind River Park Square, ready to declare victory to a KREM 2 reporter.
Bocook, allied with Gonzaga Law School, has long fought to establish more clear and lenient rules for Spokane’s street musicians. Street music, technically, has always been protected by the First Amendment. But with a recent revision to city ordinances, musicians can now officially play as loud as 10 decibels above the outdoor ambient noise.
“Now people engaging in free speech activity don’t have to worry, ‘Am I being heard 50 feet from this spot?’” City Attorney Mike Piccolo says. “We’ve taken the lead from Tacoma. They’ve had this ordinance for a while.”
But as Bocook readies to report success, a River Park Square security guard walks up, disrupting the TV interview. “[The guard] said, ‘Typically, we don’t let people play right here, because it’s loud,’” the KREM reporter, Marisa Bagg, recalls. “I assumed the sidewalks are totally public.”
Are they? It’s a tricky question. The sidewalk by the back entrance of River Park Square sits underneath the River Park Square parking garage ramp.
“Some buildings have permanent awnings. At one point in time, that was considered technically their property,” Spokane Police Officer Max Hewitt says. But recent court rulings, he adds, have shown that analysis to be unconstitutional.
“There is a Ninth Circuit case that clearly holds that if you have thoroughfare sidewalks, that are interconnected and intended for general public use, those are public forums,” Center for Justice attorney Bonnie Beavers says.
In that court case, the Venetian Resort Hotel Casino in Las Vegas replaced a public sidewalk with its own private sidewalk, then sued the city when it granted a permit for picketing on that sidewalk. The casino lost in court.
The sidewalks in Spokane aren’t private either, except for fenced-in restaurant patios, city councilman Bob Apple says.
But Beavers says River Park Square is not the only place street musicians have had trouble — “over by Rite Aid, and over across by Red Robin, and by the bus terminal, and by the Bank of America,” Beavers says. “I don’t know who’s briefing the security guards.”
A few months ago, we called Securitas, the security firm for Rite Aid and several other downtown businesses, to ask about their treatment of panhandlers and street musicians. “I’d rather not comment on that now,” the manager at Securitas said, then hung up in the middle of our next question.
River Park Square management did not return phone calls, but director of marketing Elizabeth Mills says, “We are unaware of any instances where musicians were asked to leave.”
But Bocook says it’s happened repeatedly. He sees a double standard. River Park Square, with their outdoor speaker system blasting music, may fall afoul of the noise ordinance itself. “You can hear it about a block and a half away,” Bocook says.
Since it’s a business, River Park Square isn’t protected by the First Amendment. The new, more lenient noise regulations don’t apply. Officially, if the speaker system can be heard from 50 feet away, and the music would annoy a reasonable person, city ordinances would seem to forbid it.
The city, however, says nobody has complained about the River Park Square speaker system, so there’s never been any reason to investigate the issue, according to both city spokeswoman Marlene Feist and code enforcement supervisor Heather Troutman.
Except that’s not what Beavers says. Last March, she called the city to complain, she says. They passed her along to Officer Hewitt.
Hewitt says he’s spoken to the River Park Square manager about the speakers, warning him that it could become an issue in the future. The manager, says Hewitt, “said something about turning it down.”
But today, everything seems peaceful. At the front, the River Park Square speakers play, but softly. At the back of the mall, Bocook hums on his harmonica, and when a security guard passes by, he lets Bocook continue to play.
And under the parking garage ramp, protected from the wind and the rain, the sound of the amplified harmonica reverberates.