This week's "Buffalo being Buffalo" kerfuffle is "PermitGate," with many of the city's notable music and entertainment venues getting hit with letters "reminding" them to pay a per-show fee to offer cultural fare to the masses. The reaction to these letters was reported by Investigative Post, which also commented on the antiquated section of the Buffalo City Code that enabled the charges.
Anyone seeking to throw shade on this law can simply point to some of its outdated and wince-inducing language ("Kinetoscopes," "Freaks of Nature," "Minstrel Entertainments"—language so outdated, it was grossly quaint when Mr. Burns used it in the 90's on The Simpsons).
In addition to pointing out that the law is antiquated, anyone seeking to fight this law might be able to argue that it violates Article I, Section 8 of the New York State Constitution (a.k.a "New York's version of the First Amendment").
Why is that?
The law at issue, Buffalo City Code Chapter 75, divides types of entertainment into "classes"—sixteen of them, to be precise—and those classes (such as they are) determine what has to get a permit for what and when.
For example, as provided by Chapter 75, a person can send their 10-year-old child to go to a "circus or menagerie" (fourth class) unaccompanied, but cannot allow them to go to the opera (first class) without a parent or guardian. That's right, Buffalo: our City Code is so old, it deems the circus a safe place for unaccompanied minors but protects them from the seamier elements of the opera.[1]
These classes also arbitrarily impose vague divisions and conditions on various types of art and culture. For instance, per Section 75 of the Code, "Entertainments of the first, second and third class shall be given only in a duly licensed place." So, opera, art exhibits, lectures, and "musical entertainments" can only happen in Buffalo at a place with a license.
Meanwhile, per Section 75-5, none of the 16 classes of entertainment (except classes 4 and 5—primarily circuses and concerts under tents) can happen "at any place in the City other than within a duly licensed theater, opera house, hall or other enclosure or place without a license issued for that purpose,"[2] except that "no license fee shall be charged for amateur athletic games."
If you're still hanging in there, here's a final wild combo: per Article 75-7, no license for classes 1, 4, or 5 (opera, circus, sideshow) can be issued unless the "Commissioner of Inspection and Licenses" has certified to the Commissioner of Permit & Inspection Services that the space complies with all building ordinance requirements. But if you're at a lecture, demonstrating a "galvanic battery" (class 8), or attending an art show, well... you're rolling the structural dice.
These classes of entertainment and the odd array of requirements that might or might not apply to them may be the reason why some Buffalo entertainment venues got letters, and some didn't.
All of which brings us back to New York’s Constitution, Article I, Section 8.
Under both our state and federal constitutions, local governments are absolutely allowed to impose restrictions on communications and commercial activity that constitutes speech,[3] so long as the restrictions meet the precise formulas to not unduly infringe on civil liberties.
There are countless tomes written about these "precise formulas" but essentially they require that when the government imposes a restriction (such as a permit) on speech, there must be a good reason to do so. In addition, the restrictions—if justified by a good reason—must be clear and not be so vague as to impose a "chilling effect" on protected activities.
As the law stands right now, anyone offering opera should feel really nervous about whether or not 15-year-olds can attend unaccompanied. Anyone offering a lecture or art exhibition might want to consider rebranding to offer "amateur athletic games" to avoid licensing fees. And whether we're pros or hobbyists, we should all hide our mutoscopes (class 6).
I am of course citing the more ridiculous examples, but the point is, when it can impact art—even commercial presentation of art—laws must be clear, must not risk "over-breadth," and must be applied in a way that is fair.
Ironically, Buffalo has a solid model for this in chapter 496 of the Code, which covers how Buffalo puts different uses and activities in different "zones" (and which has the advantage of having been adopted more recently, in 2017).
Here is how Chapter 496 defines an "Adult Bookstore":
a. Adult Bookstore. A business having five percent or more of its floor area devoted to sale or rent of, or five percent or more of its stock-in-trade in, publications, books, magazines, periodicals, photographs, films, motion pictures, video cassettes or video reproductions, or other visual representations that depict or describe specified sexual activities or specified anatomical areas, or instruments, devices, or paraphernalia that are designed for use in connection with specified sexual activities.
Look at that crisp, clear language! No confusion here.
To compare, if this section on "Adult Bookstore" was part of Article 75, it would probably say:
No Bookseller shall offer to the general public lascivious materials except that for healthy adult male consumption. Such lascivious materials shall be divided into 3 classes: Smut (from which shall be excluded all materials related to study of classical Greek, as well as Latin studied for religious purposes), Materials damaging to the Ladies, and Scandalous Literature. Sales of Smut and Scandalous Literature are limited to the third block of Main Street on Tuesday, and the Health Inspector shall confirm the Good Moral Character of all Booksellers before the sale of Damaging Materials.
What is my point here? This law might not just be infuriatingly outdated, but unconstitutionally vague and overbroad.
Now, I have to say: a genuine First Amendment/Article 8 analysis has to not only deeply parse the law but precisely analyze how it is being applied. In the case of PermitGate, that would require looking at the letters that were sent and other specifics.
But having spent an hour or two poking around the law, I think anyone who is facing costly business consequences because of it would be wise to conduct a further analysis. It may be that this law needs to put on its top hat, get on its velocipede, and become a cringe-worthy footnote in Buffalo's history.
Stephanie ("Cole") Adams is an attorney in Buffalo. She represents libraries across the State of New York and handles First Amendment issues as part of her practice.
[1] I concede it's possible the Code is actually protecting the opera from the ravages of unaccompanied minors--but that too is culturally out of step.
[2] If the above quote is confusing, it's not because I am a bad writer or because I misquoted the Code. Read the quoted language again and tell me if it's clear or not. Commas matter!
[3] Music, dancing, visual art, poetry, etc. can all be "speech" in the First Amendment realm.