Daniel Rubin | City's anxiety over performance

So the great singing-in-the-park controversy is over. Anthony Riley strolled out of court Tuesday a free man, found not guilty of disorderly conduct. The offense: He refused to stop crooning "A Change Is Gonna Come" in Rittenhouse Square.

And the City Solicitor's Office has issued an opinion, at the request of the Police Department, clarifying what can and can't be sung or played in the park.

Except that the new rules are a cacophony.

In an attempt to balance the rights of musicians, neighbors, and urban nature-lovers, the city law office has opined that singing or strumming a guitar is permissible without a permit, as long as no one is performing.

What's performing?

Good question. Here's some guidance from the city's lawyers: If a group's passing around a hat for tips, that's performing. If it passed out flyers in advance, that's performing. If it's using amplifiers, that's performing.

If it attracts more than "a handful" of people, that's performing.

In theory, this will allow low-key singing and picking, and protect the neighbors from the sort of all-hours drumming that leaves dark circles under their eyes.

But while the city got the tune right, it seems to have botched the words.

"Handful" is not an iron-clad legal concept. I used to have an editor in Kentucky who would strike it from my copy every time I used it, asking, "Just how many people can fit in a hand?"

It's a little puzzling for the rules to say that singers get into trouble once they start attracting a crowd. Will a good singer face more problems than a bad one?

The city's interpretation is fuzzy enough that when NPR wanted to tape Riley doing his thing last week, defense attorney Evan Shingles refused to let his client sing in Rittenhouse Square for fear that the 20-year-old would be arrested again.

So he had Riley sing outside the Dorchester, which I'm sure earned him a handful of new fans.

City Solicitor Romulo Diaz Jr. said he ran his staff's opinion by a variety of organizations before issuing the clarification last Thursday.

He might have wanted to check with the American Civil Liberties Union.

"We don't think there's any question that this new policy violates the Constitution," says ACLU staff attorney Mary Catherine Roper.

It also will make police officers' jobs harder, she said.

How will musicians know how many people to invite to hear them sing? she asked. How will they know they're crossing the line when they open their guitar cases? And how quickly must they shut their cases before they get cited for illegally performing?

Roper insists that singing is speech, and as such is protected by the First Amendment. "Try," she said, "to imagine a law that said you can go to the park and talk to yourself or talk to a friend or two, but that you can't have a meeting or give a speech if you want more than a handful of people to listen to you."

The point of the First Amendment, she added, is to protect our ability to speak to "more than a mere handful of others" when we have something to say.

She dug out this U.S. Supreme Court opinion, from 1939: "Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens."

As my old editor in Kentucky would have said about the new park rules: "Honey, get me rewrite."