Legal Affairs

July|August 2004

Tuba Fats

EARLIER THIS YEAR, AFTER ANTHONY "TUBA FATS" LACEN suffered a fatal heart attack at age 53, thousands of mourners and hundreds of brass band musicians gave him a traditional jazz funeral, walking and dancing behind his horse-drawn casket as it passed through the streets of his hometown of New Orleans. During his career, Lacen had performed at Carnegie Hall, the White House, and Buckingham Palace, but it was his work in the Crescent City that is likely to be his legacy. Since the 1970s, Lacen could almost always be found sitting on a bench in Jackson Square, the public park in the heart of the French Quarter, where he played his well-worn tuba, sang old jazz and blues songs, and mentored a generation of aspiring musicians. Jackson Square is also where Lacen helped build a body of case law establishing the performance of music as a form of expression protected by the First Amendment.

In 1977, in response to complaints by residents about noise and crowds, the city council passed an ordinance banning street music from a large swath of the French Quarter. Lacen and other musicians enlisted the aid of attorneys Bill Rittenberg and Mary Howell. "Tuba was a stalwart in all of these battles," Howell recalled recently.

Rittenberg and Howell filed Bowman v. Landrieu in federal district court, alleging that the ban denied musicians "their rights to free exercise of speech through the playing of music." Judge R. Blake West agreed and issued an injunction blocking enforcement of the ordinance. The decision was one of the first to protect music as a form of speech.

Unbowed, the city council continued its effort to silence the streets, crafting a series of new ordinances over a 27-year span. Each had a new twist designed to get around West's ruling: no street performance during Mardi Gras, no music audible beyond 50 feet, no music louder than 55 decibels—a level that would have been violated by a hearty sneeze.

Lacen himself received a citation for playing his horn. "I am well familiar with my instrument, having played it for over 30 years," he said in a 1996 affidavit, "and there is no way I can play my tuba, even playing as softly as possible, where it is not in violation of that ordinance." Howell, on behalf of Lacen and his fellow Jackson Square musicians, eventually filed lawsuits against four city ordinances and one state statute. All were found unconstitutional in federal court.

—KATY RECKDAHL



					July\|August 2004 Tuba Fats EARLIER THIS YEAR, AFTER ANTHONY "TUBA FATS" LACEN suffered a fatal heart attack at age 53, thousands of mourners and hundreds of brass band musicians gave him a traditional jazz funeral, walking and dancing behind his horse-drawn casket as it passed through the streets of his hometown of New Orleans. During his career, Lacen had performed at Carnegie Hall, the White House, and Buckingham Palace, but it was his work in the Crescent City that is likely to be his legacy. Since the 1970s, Lacen could almost always be found sitting on a bench in Jackson Square, the public park in the heart of the French Quarter, where he played his well-worn tuba, sang old jazz and blues songs, and mentored a generation of aspiring musicians. Jackson Square is also where Lacen helped build a body of case law establishing the performance of music as a form of expression protected by the First Amendment. In 1977, in response to complaints by residents about noise and crowds, the city council passed an ordinance banning street music from a large swath of the French Quarter. Lacen and other musicians enlisted the aid of attorneys Bill Rittenberg and Mary Howell. "Tuba was a stalwart in all of these battles," Howell recalled recently. Rittenberg and Howell filed Bowman v. Landrieu in federal district court, alleging that the ban denied musicians "their rights to free exercise of speech through the playing of music." Judge R. Blake West agreed and issued an injunction blocking enforcement of the ordinance. The decision was one of the first to protect music as a form of speech. Unbowed, the city council continued its effort to silence the streets, crafting a series of new ordinances over a 27-year span. Each had a new twist designed to get around West's ruling: no street performance during Mardi Gras, no music audible beyond 50 feet, no music louder than 55 decibels—a level that would have been violated by a hearty sneeze. Lacen himself received a citation for playing his horn. "I am well familiar with my instrument, having played it for over 30 years," he said in a 1996 affidavit, "and there is no way I can play my tuba, even playing as softly as possible, where it is not in violation of that ordinance." Howell, on behalf of Lacen and his fellow Jackson Square musicians, eventually filed lawsuits against four city ordinances and one state statute. All were found unconstitutional in federal court. —KATY RECKDAHL