A softer version of a downtown alderman’s controversial plan to silence street musicians on Michigan Ave. and State Street isn’t soft enough to pass legal muster, the American Civil Liberties Union warned Wednesday.

“The new proposed ordinance is slightly less draconian, but it suffers the same basic constitutional infirmity as the prior version…Such an ordinance cannot withstand constitutional scrutiny,” senior staff counsel Rebecca Glenberg wrote in a letter emailed to the City Council’s License Committee.

Facing an almost certain City Council defeat, downtown Ald. Brendan Reilly (42nd) on Wednesday watered down his plan to silence street musicians on Michigan Avenue and State Street.

Instead of banning the music altogether on downtown’s two marquee streets, Reilly proposed limiting the music to the hours of the day when there is the greatest amount of pedestrian traffic. That is between the hours of 11 a.m. and 1 p.m. and 5 p.m. and 6 p.m. on weekdays and between 1 p.m. and 3 p.m. on Saturdays and Sundays.

Reilly also narrowed the boundaries of the targeted area. It would run from the east side of Michigan Avenue to the west side of Dearborn and from the north side of Oak Street to the north side of Van Buren.

The restricted hours would apply to street musicians whose performances include “bullhorn or electronic amplification or a musical instrument or other object that is struck manually or with a stick or similar item to produce a sharp percussive noise.”

Those changes may be enough to win Reilly the 26 votes he needs and didn’t have to approve the ordinance. But, they were not enough to satisfy the ACLU.

“Instead of regulating the volume of expression on public sidewalks, it regulates the content of that expression, singling out street performers for unique burdens not imposed on other expression that may be equally loud,” Glenberg wrote.

“The city of Chicago is entitled to protect residents from excessive noise by imposing neutral limits on sound levels. It may not do so by singling out particular forms of expression for near elimination from a broad section of the city.”

Instead of strengthening an ordinance that is already of “dubious constitutionality,” Glenberg advised aldermen to “instead eliminate the current permit requirement and the prohibition on performances in Millenium Park.”

Reilly has argued that the existing standard of a “conversational level at a distance of 100 feet” is difficult to enforce, prompting police to ignore the requirement and downtown residents and employees to suffer.

Glenberg didn’t buy it.

She questioned why that standard would be “unenforceable with respect to street musicians, but perfectly feasible” when it comes to “other source of amplified sound, such as advertising or street preaching.”

And even if it is tough to enforce, Glenberg wrote, “The solution is not to ban street performers, but to enact a different type of volume control, such as one based on decibel level.”

Reilly said he has not received the ACLU’s bill of particulars and can’t understand why not.

He noted that he “worked closely with the Law Department and constitutional lawyers to narrowly craft reasonable regulations that allow performers to play during the highest value hours of the day, while also providing needed relief for office workers and residents.”

“Constitutional lawyers have assisted with drafting the compromise ordinance and others have reviewed it in detail and disagree with the ACLU’s conclusion,” Reilly wrote in an email to the Chicago Sun-Times.

Reilly stressed that he is continuing to work to identify
“additional, lucrative locations in downtown parks [for the first time] and additional CTA subway stations” where street musicians can perform.

The aldermen said he hopes to pass the compromise “in tandem with agreements for additional park & CTA locations.”

“Street musician representatives and their attorneys asked for first-time-ever park locations, as well as additional subway platforms. They explained that the high volume, high transiency of those locations mean more paying customers in shorter periods of time. They admitted there is very real money to be made, especially on the CTA,” Reilly wrote.

“Other large cities, like New York, have struck a reasonable balance between quality-of-life and street musicians – their responsible use of public parks and subway stations has a lot to do with that success. We will spend the next month locking-in these new locations and meeting with our colleagues to explain the changes in the compromise ordinance and the new revenue opportunities it will present to street musicians who choose to use amplifiers, bullhorns or percussion.”

Last month, Reilly and co-sponsor, Ald. Brian Hopkins (2nd) were both optimistic that that the softer version would pass legal muster.

Hopkins was the one who insisted that Sunday be a day of music silence on State Street and Michigan Ave. After living on Michigan Ave. for 20 years, Hopkins said knows first-hand how complaints about street musicians “spikes on the weekends, particularly on Sunday.

“Say you’re home all day Sunday and you have to listen to eight hours of drums right outside your window. That’s going to annoy you in a way that listening to it for 45 minutes on a week day before you run out to do your errand or go to work won’t,” Hopkins said then.

Hopkins on Wednesday sent an email to the Sun-Times quoting from a guidebook for downtown protesters published by the Rhode Island chapter of the ACLU.

It states that First Amendment rights can be limited whereby, “a city can restrict the volume of sound or specify that the use of sound equipment be confined to certain times or areas.”

“If the ACLU believes that reasonable limitation can be applied to political speech at protests and rallies, surely it applies to street performers, as their activity is primarily commercial while they are performing for money,” Hopkins wrote.