A federal appeals court, exhibiting little relish for itinerant bagpipers, has reinstated a controversial ban aimed at muffling the sounds of street musicians on the sidewalks of Alexandria's business district, including much of historic Old Town.
Among the music makers who objected to being silenced was Lee Davenport, a 31-year-old bagpiper and harpist who challenged the Alexandria ordinance in court. A federal judge agreed with Davenport's lawyers and struck down the ban nearly a year ago. But an appeals panel in Richmond overturned the lower-court ruling yesterday and muted the street musicians once again.
"We hold simply that performances and exhibitions are basically incompatible with the normal activities of the sidewalks in the central business district," the 4th Circuit Court of Appeals said in its 2-to-1 decision.
Last August District Judge Albert V. Bryan Jr. had rejected the ordinance as unconstitutionally vague and improperly infringing on musicians' rights to free expression.
The appellate court concluded, however, that the law was drawn "as narrowly as possible" since the Alexandria City Council had no way of telling how large a crowd might congregate around a street player.
"The most narrow sidewalk might be unobstructed by a single performer who commands only passing notice; however, if the performer is a Frank Sinatra, a Willie Nelson or a Dolly Parton, the widest sidewalk in Alexandria could not accommodate the crowd that would gather," the appeals court said.
Kenneth E. Labowitz, one of Davenport's lawyers, said he will urge his client to seek a new hearing by the full nine-member appellate court or appeal the ruling to the Supreme Court.
Davenport said, however, that he has made no decision since he has moved to Howard County, Md. He that he is giving fewer street concerts and devoting more time to harp playing, and has not performed in Alexandria in nearly a year.