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In a recent TED Radio podcast, Solving It, Attorney Philip K. Howard talked about a case where a young girl was forced to stop selling cupcakes because she didn’t have a food handling license. He’s clear about why this blind adherence to the law is so common:

We are increasingly moving towards this rule based fetish about law, where it’s not a question of what’s right and wrong any more, but “did you comply”? And if you didn’t comply, throw the book at them.

Somehow or another in the last couple of decades, the Land of the Free has become a legal minefield. There is a fetish over rules that has replaced morality, and it works both in a gotcha kind of way, and in an avoidance of responsibility kind of way.

It’s one of the most convincing arguments I’ve heard for why busking in the NYC subway is so often met with ejections, fines and arrests.

It’s nothing to do with talent

I’ve talked about it way too many times before, but I used to live with Chen Cong, a subway violinist in NYC.

Every time I saw him wield his violin, I witnessed the transformative power of art to turn even the dingiest, least comfortable of atmospheres into a place where micro-communities of happy commuters feel completely relaxed around each other. I saw people miss trains on purpose (for upwards of an hour), I saw them hold hands, smile, laugh, dance, wipe tears off their cheeks and to make eye contact with complete strangers.

And despite doing this for 18 years with nobody dying as a result, Chen began to get fined so often for this that he was forced to leave New York to find a more welcoming city to perform in.

What he was doing was officially against the rules, yes. He had a small amp. But he was so good that the Herald Tribune ran a story on him (although they did spell his name wrong).

BuskNY – a Game Changer

Chen left New York over four years ago. Things haven’t improved much, but recently a busking rights advocate, Matthew Christian, has been making an impact with BuskNY, an increasingly significant New York City-based busking force.

An article in Gothamist last week shows why busking in the NYC subway is stacked against the performer. Videos shot by Matthew show clearly how a complaint – ANY complaint – is acted on by MTA staff. The above video shows Ramón Peña, a Puerto Rican subway busker, after being told by the police that he could either leave the station or face arrest. This is where Matthew steps in.

MTA Station Manager: “We called because there was a noise complaint. We don’t determine what’s noise and what’s not. When someone gives us a complaint we have to act on it. What does New York City transit do when someone complains to us?”

Matthew Christian: “My question is, if he calls and complains, and says I’m gay, are you going to call the cops because he complained?

MTA: “We don’t determine the validity of the complaint. We take the complaint and we act on it. That’s what we do.”

Matthew: “And you would not use your own sense of right, or your interpretation of the rules to distinguish wrongful complaints? Any complaint you pass it on?

MTA: “Mostly yes.”

Matthew: “All complaints ever?”

MTA: “Yes.”

The MTA official agreed that Ramón wasn’t doing anything criminal. He left, and Ramón went back to his spot, free to finish out his set.

So, what can we do about it?

Philip K. Howard finished his TED Talk with a suggestion of how we can return some sense to the rule of law. Despite claiming “it’s not that hard”, the plan is…well, bold to say the least:

We need to rewrite and radically simplify and dehumanise the structure of public law in our society , where we safeguard against abuses with human checks and balances, where other people have the authority to use their judgment.

What the world needs now is to restore authority to make common choices. It’s the only way to get our freedom back, and it’s the only way to release the energy and passion needed, so we can meet the challenges of our time.

Ramón Peña’s case is the second filmed incident this month (who knows what the real figure actually is) of a busker being asked to leave the subway, and the second time this month that Gothamist has run an article about it. It feels like we are on our way to seeing the New York subway become a place where needless arrests/evictions/fines are a thing of the past.

Or is that just a dream?