Vol. 3 No. 4 (April, 1993) pp. 31-34
GIGS: JAZZ AND THE CABARET LAWS IN NEW YORK CITY by Paul
Chevigny. New York: Routledge, 1991. 215 pp.
Reviewed by Dennis J. Coyle, Department of Politics, Catholic
University of America.
GIGS -- pardon the expression -- has a good beat. You can dance
to it. What it lacks in depth and nuance, it makes up in a
fascinating tale of rights and regulation, of music and
litigation. GIGS is an excellent case study from an insider's
perspective, and that is its strength and its weakness.
"This is a book about rights and music, mostly jazz
music," Chevigny tells us, and the latter is most apt. The
book chronicles the decades-long attempts to loosen regulatory
restrictions on the performance of music -- especially jazz music
-- in New York City clubs, culminating in a successful law suit
that Chevigny brought on behalf of members of the musicians'
union. His appre- ciation of jazz shines through, making the
narrative an interesting read.
Chevigny's close identification with the plight of the musicians
and clubs, however, leads him to treat the regulation of jazz in
isolation. The value conflicts and bureaucratic absurdities that
he points out can be found across the regulatory spectrum, and
social scientists may be frustrated by his disinclination to go
beyond a superficial consideration of the consequences of
regulation for freedom and community. But Chevigny's portrait is
a revealing snapshot of how the jazz restrictions -- which
limited live music to three musicians playing strings or piano,
except for properly zoned and licensed "cabarets" --
and the tortuous procedures required to comply with or change
them made life difficult and skewed politics.
GIGS points out the perverse effects of decentralization intended
to "democratize" New York government by increasing
public participation. Regula- tory changes required submission to
59 community boards for comments and review by an environmental
board, in addition to planning board hearings and approval by the
Board of Estimate. Chevigny notes that "the fragmentation
tends to return power to the center," (171) making change
"dauntingly difficult without the cooperation of City
Hall." (172) Reforms intended to spread power may produce
paralysis surmountable only with concentrated power. Indeed,
having a sympathetic mayor proved crucial to ultimate victory in
the musician's war.
The permit process to which music clubs were subjected also was
long, costly and uncertain, typically taking two years. "It
was difficult for me to picture anyone having the patience, much
less the resources, to withstand the process," Chevigny
writes. (143) Both zoning approval and a license were required,
but the two processes were entirely independent. And getting a
license required approval from the fire and buildings departments
as well as the license board. Permit applications were subject to
hearings conducted by the local community board, leaving the club
vulnerable to objections by neighbors. Officials wielded
considerable discretion in granting permits, allowing them to
dangle approval as a carrot to force concessions by the
applicants. One club owner summed it up: "Unfortunately, the
bureaucracy of New York City does not see itself in a supportive
role to help well-meaning people who want to comply, to make it
possible to do it. The standards are contradictory. It's a
miracle that anyone has been able to comply with the requirements
in New York. It's VERY costly." (83)
The licensing and zoning requirements created classic regulatory
barriers to entry. Small, marginal operators that lacked the time
and money to thread the regulatory maze were hurt the most. Clubs
that emerged victorious from the quest for a permit often sought
established artists who could pull in a crowd, and were reluctant
to book younger, less-well known musicians. The regulations
seemed "calculated to favor chiefly those with considerable
staying power," stifling creativity and new artists. (178)
The alternative to licensing was to operate illegally, vulnerable
to
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padlocking by the city, or comply with the "incidental
music" exception that allowed restaurants and bars to
provide background music of no more than three musicians playing
piano or strings, without a special permit.
The costs and bewildering procedures are not unique to regulation
of music clubs, and Chevigny's story undermines the rationale for
any broad-based anticipatory scheme of regulation, such as
zoning, that categorizes and restricts a wide range of activity.
But Chevigny declines the opportunity to consider more broadly
the impacts of regulation.
Indeed, he distances the dispute from other zoning or economic
regulation, emphasizing that it was not "a commercial
drama" but rather "a personal or artistic one,"
and that "most of the owners of clubs with music are not
entrepreneurs in the sense that City Planning has in mind."
(68, 146) But the predicament described by Chevigny could apply
to proprietors of a wide variety of artistic and other small
ventures in the city: "They are just hoping to make a few
extra dollars, please their patrons and themselves. ... They are
unable to withstand a complex system of permits and licenses,
with its attendant mysteries and legal fees." (148) Without
profitable venues to play, fewer musicians can afford to perform,
and thus the expressive dispute was also an economic one. And it
is hard to see how the regulation is more of a
"personal" drama than, say, the saga of small shop
owner whose satisfaction and aspira- tions are tied up in an
enterprise subject to regulation.
Chevigny's disinterest in addressing the wider implications of
his argument is especially surprising because Judge Saxe, who
ruled in favor of the musician's union, expressed a broad
critique of regulation: "I have a jaundiced view of the way
the City regulates business. They go much too far in the
regulation .... I think it just employs people...." (130)
And that's not just rhetoric for Saxe; in SEAWALL ASSOCIATES V.
CITY OF NEW YORK, he struck down an ordinance, as a deprivation
of property without compensation, that required low-income-hotel
owners to rehabilitate and rent all units. Saxe's target was
needless or excessive regulation across the board, while Chevigny
seeks to make a special case for jazz.
Having shown the harsh effects that regulation can have on
individuals struggling to make a living at their chosen calling,
Chevigny may leave some readers to wonder whether the regulatory
maze really had much to do with the hardships faced by jazz, and
if it did, whether it might not have been justi- fied. Chevigny
argues that land use regulations are fundamentally about values.
"Their very reason for being is to regulate land use
according to the values and the tastes of those who plan for the
city." (4) That may be quite true, but not necessarily
illegitimate. Because Chevigny declined to present a
comprehensive critique of regulation, it's not clear whether the
city sinned by legislating values, or simply by legislating the
wrong values. It's doubtful that Chevigny would have been so
exercised if the city had made, say, discos and elevator music
the primary targets of its regulatory zeal, rather than jazz
clubs. In the absence of a strong argument that promoting values
through regulation is illegitimate, it's not clear why Chevigny's
values should prevail over the values of city leaders.
Chevigny is quick to ascribe regulation of jazz to racism, and to
an apparently detestable preference for middle-class values,
which seem to include finding a parking place and getting a good
night's sleep. Clearly Chevigny is no aspiring Levittowner. He
contemptuously dismisses desires for a safe, private, "neat
and clean" family environment (92) as "not
interesting." (93) The proprietor of a popular bar states
the point more stridently: "This is the city that never
sleeps. Stop trying to put us to bed." (125) His criticisms
imply that artistic expression is so important that we should
tolerate a little inconvenience, a little rowdiness, a little
criminality. But Chevigny's derision of middle-class mores
provides a weak justification for deregulation. He walks to the
precipice of another classic issue, the tension between
individual expression and community concerns, but again declines
to take the leap.
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Chevigny's claim that the cabaret laws were "rooted
ultimately in racism as well as fear of bohemian mores," is
entirely plausible, but his evidence is thin and anecdotal. (4)
For example, he criticizes the city for asserting, when the
regulations were first introduced, that "there has been
altogether too much running 'wild' in some of these
nightclubs." (56) City officials irratio- nally feared a
culture they didn't understand, he suggests. But Chevigny also
admits that there was some underworld involvement in clubs, and
considerable drug usage among musicians. Is Chevigny suggesting
that fear of crime and drugs cannot justify regulation? That may
be a valid argument, but it is one he does not develop; he
provides no criteria to decide when these justifica- tions might
suffice. He criticizes the denial of a cabaret card to Billie
Holiday, for example, because of drug offenses: "Authorities
were concerned with her criminal record, and not at all with here
artistry; that she was one of the very greatest of singers ...
seemed to make no difference to the city or state authorities at
all." (59) Now I am hardly a regulatory lapdog, but I cringe
at the suggestion that the criminal law, or at least its
regulatory ramifications, should be guided by the talents of the
offender. By sliding toward simplistic criticisms of the state,
Chevigny weakens his own argument.
Fear of moral corruption from association with criminals and
derelicts was not the city's only concern. After a fire in the
1970s, for example, safety measures required to gain a license
became more stringent. Surely sparing patrons from the barbecue
is not merely an aspect of racism or cultural phobia. Similarly,
Chevigny dismisses the noise-limiting justification for the
inciden- tal music limit as "an outright expression of
prejudice; ... an able musician can play any instrument
softly." (88) Well, yes, but as any suffering parent of a
budding musician can tell you, horns and drums can be played
rather loudly, too. He also criticizes cities that forbid
sidewalk carts and cafes under health codes "in the name of
sanitation. Once again: neat, clean -- and empty." (95)
Perhaps banning cafes is an excessive response to a cleanliness
fetish, but again Chevigny does not take the time to distinguish
cleanliness from racism in his universe of unacceptable motives.
Just as regulation may not have been as entirely mindless as
Chevigny suggests, so also its effect on jazz may not have been
as great as first thought. The hardships faced by musicians
largely reflect the reality that even in New York, jazz does not
attract a lucrative, mass following. As one proprietor
complained, "If this were Europe, Iggy and I would be famous
and the musicians who work here would be on television every
night." (77) Jazz in America has not proven especially
popular or profitable. But in a way, that's the point. Regulation
can be a drain on any business enterprise, but it's the small
operator or marginal industries that are most vulnerable.
Regulation matters most at the margins, and jazz is perennially
marginal.
While jazz may not resonate with the masses, it does enjoy a
certain cachet among elites. As one musician told Chevigny,
"Jazz is considered hip and intellectual. ... Jazz is a safe
commodity." (164) Jazz is both outside the mainstream and
close to power, and the latter attribute explains the demise of
regulation. The victory over the licensing system does not
represent the triumph of fringe or countercultural behavior over
an entrenched status quo, but rather the embrace of jazz by the
privileged and powerful.
Fingerprinting jazz performers and requiring them to have cabaret
cards, for example, ended not in response to mass demonstrations,
but by order of a sympathetic mayor, John Lindsay. Similarly,
having a jazz aficionado as mayor was a key to the city's
ultimate capitulation after the musicians' union prevailed in
court. As leader of the Manhattan Borough Board, David Dinkins
helped derail a city push to re-regulate jazz. After Dinkins was
elected mayor, the city abandoned the effort. As Barabara Fife,
the deputy mayor, explained, "Jazz is a signature of the
city. It is something the mayor is proud of and enjoys."
(152) New York's leading newspapers weighed in with editorials
and columns castigating the city. The musicians also benefitted
from a sympathetic
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ear on the bench. As one lawyer advised Chevigny, "When it
comes to music in Manhattan, man, get a Manhattan judge!"
(106) By the luck of the draw, the case was assigned to David
Saxe, who was critical of the city's regulatory zeal despite --
or perhaps because of -- having been a regulatory enforcement
director for the city.
At its heart, GIGS is a cautionary tale, suggesting the limits of
legal change. "An opinion, even an order, from a court is
only a sheaf of papers; it does not affect anything except as
people react to it." (132) The administra- tive obstacles to
jazz essentially collapsed when elites agreed that they had to
go. Tastes change with time, and the city that Chevigny
disparaged as obsessed with sterile order had come around to his
values. Ultimately, the case was not a clear First Amendment blow
on behalf of controversial expres- sion.
Thankfully, perhaps, judges do not rule the world. But their
power is not entirely imaginary. Simply filing the suit and
making a rights argument changed perceptions, raising the
expectations of musicians and owners and galvanizing political
and media support. While the coercive power of law and rights may
be exaggerated, their moral sway should not be understated. GIGS
shows how constitutional rights are only one of many factors in
social change, but still they may be the sharpest weapon of all,
cutting across layers of bureaucracy and placing arguments in
simple, compelling terms.