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Right On: Live Music, Noise and Rights – Adam Behr

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Previous posts on this website, including our recent piece about what makes for a ‘healthy musical city’, have touched upon the intersection between legislation and live music. Obviously there’s a good deal of variation from country to country and between different regions and even different municipalities. Across the board, however, are some similar concerns that tie into the very purpose of legislation and government – in musical and other matters. My main concern in the post is with concepts that underpin the legislative agenda surrounding live music.

Sound, including music, has been a way of marking out territory since time immemorial and, as Cloonan and Johnson (2008) have pointed out, the effects of this are felt throughout the pleasures and irritations of our daily lives, from the hiss of iPods on the bus through to blaring loudspeakers. One person’s public celebration is another’s disruption of peace and quiet. This is nothing new, however, as Hogarth’s engraving The Enraged Musician, from 1741, illustrates – the violinist’s solitary practice wrecked by the street crowd’s public jollity.hogarth

Hogarth’s violinist and his antagonists have plenty of their own equivalents today in pubs, venues, houses, and tenement blocks the world over. It’s these disputes that city councils have to regulate, with potentially significant consequences for the overall ‘health’ of a locality’s live music ecology. Last week’s post outlined some of the areas in which both local and national legislation and, importantly, how they are enacted and interpreted, can affect a local scene and I’ll return to them later. Before that I want to look at some of the wider matters that sit at the roots of these debates.

Live music and the state

Music is a potent form of expression, used throughout history for entertainment, ceremony, as a rallying cry and for any number of other purposes – by individuals, groups and the body politic alike – from love songs and birthday greetings to national anthems and military signals.

The overlap between musical and political concerns and actions, then, is large. It’s reasonably obvious that the power of musical expression is of concern to different types of government. The ongoing Pussy Riot case in Russia centres on the nature of a particular musical performance, and the use or abuse of state power in responding to it. Censorship and persecution of this sort occur across the world – the recent arrest of Tunisian rapper Weld el 15 and imprisonment of two Tibetan singers are two more in a long list of examples of musicians coming unstuck in the face of censorious regimes.

But it’s easy to think that such matters – extreme as they may be – are distinct to repressive regimes. If I can assume (maybe controversially) that the basic purpose of elected governments in comparatively liberal western nations is to govern for the greater good of all citizens, we still come up against sticking points fairly quickly. The longstanding controversy over what music can be played and where during parades in Northern Ireland is only one such example of how this flares up into very real instances of public concern, potential public safety, and questions of where the valid limits to freedom of expression lie.

The core issue in terms of live music’s relationship with civic and political life is one of rights, and that applies to extreme cases – such as imprisonment for singing a song whose message displeases the authorities – to the (hopefully) more mundane late night knock on the door with a polite request to turn it down.

Different political systems, both today and historically, have different conceptions of what constitute valid rights. This has implications for musicians and audiences. As Martin Cloonan (1999) has pointed out, state policy regarding music can be authoritarian and repressive (as with arrests and censorship), broadly benign and laissez-faire or even promotional (such as with radio play quotas). One of the greatest ideological disputes of the 20th Century between East and West, of course, had the relationship between the state and private property at its centre and musical ‘property’ is still contentious, as played out in the continuing wrangles of copyright. But, as Cloonan notes, there are overlaps across repressive, laissez-faire and promotional activity in any type of state. And it’s often with regard to live music that these can be felt – some forms of public assembly (a Live Nation event, corporately run and expensively ticketed) will be tolerated more than others (a free rave, organised on the fly over Facebook).

As John Street (2012) has argued recently, the treatment of live music cases by the law – in different jurisdictions – has sometimes failed to consider its value as a mode of expression, looking with tunnel vision at its value in commercial transactions. His examination of the cancellation of a tour by grime artist Giggs, under pressure from the Metropolitan police, who cited public safety grounds, shows how both sides of the argument failed to take account of the fundamental aspect of freedom of expression through live music. They focused instead on whether or not the Met’s public safety concerns were justified or whether it had acted on racially discriminatory grounds. Likewise, the way in which the merger between Ticketmaster and Live Nation was waved through by regulators took no account of concerns beyond the market – the possible effect on plurality or diversity that would have applied to media mergers in other sectors being left out of the equation.

Street contrasts these to a previous case in which live music was held to be invested with rights beyond the merely transactional – the reform of New York cabaret laws in which not just the music as it was laid out on a stave but types of performance (instrumentation and so on) were protected under the auspices of the First Amendment to the US Constitution. This is a crucial point, and it brings us back to issues of noise at a local level. Potential objections to the cabaret law reform – such as the problem of noise pollution – arising from various groupings of instruments or genres of music were already covered by other legislation. As failed to happen in the Ticketmaster and Giggs cases, it is important to recognise that the law in its application, or non-application, says much about the value of live music and its status as a mode of expression.

[I]f we live a bad or inadequate cultural theory, we see the production and consumption of live music in the same terms that we see the production of insurance or banking services. If we do not value live music as we try (however inadequately) to value other media and cultural forms, then we may fail to recognise the cultural or public interest virtue that it represents. (Street 2012: 584)

Live music and rights

In other words, live music is about more than just entertainment, although the value of entertainment itself should also not be overlooked. Which brings us back to the angry violinist and his noisy neighbours. Disputes over live music aren’t always articulated in terms of fundamental rights – but they frequently refer back to them. In fact personal grievances of many stripes often have a basis in a perceived infringement of one’s rights. Hogarth’s satiric works were a product of the Age of Enlightenment, which brought with it the conception of natural rights, expounded first by Thomas Hobbes and John Locke, and the notion of a social contract between citizens and government, reaching formal, practical fruitions in the French and American Revolutions and, ultimately, the constitution used to protect cabaret musicians in New York.

It may seem to be a bit of a leap from peoples’ fundamental rights to how a council regulates the live music activities in its jurisdiction. But this plays into the role of government – and the legitimate application of its power. John Stuart Mill was writing as the Age of Enlightenment bordered on modernity, and in the throes of the industrialisation and urbanisation that came to shape a good deal of how we live in cities to this day. A key contention of his landmark work On Liberty concerned the relationship between society and the individual. Individuals should be free to speak and act as they pleased as long as this is not to the detriment of others. Society should only intervene when the actions of an individual impinge upon the rights of others:

Acts, of whatever kind, which, without justifiable cause, do harm to others, may be, and in the more important cases absolutely require to be, controlled by the unfavourable sentiments, and, when needful, by the active interference of mankind. The liberty of the individual must be thus far limited; he must not make himself a nuisance to other people. But if he refrains from molesting others in what concerns them, and merely acts according to his own inclination and judgement in things which concern himself, the same reasons which show that opinion should be free, prove also that he should be allowed, without molestation, to carry his opinions into practice at his own cost (Mill: 56-57).

Clearly there’s a good deal of room for interpretation in this – and I don’t propose to debate the finer points of Utilitarian and Liberal philosophy here – but it does take us into the murky waters of how music – or noise ­– is regulated, namely by mediating between sometimes conflicting rights: your right to practise the electric guitar (or piano, or violin) in my flat or jam with friends versus your neighbour’s right to watch TV or read, or sleep, without being disturbed.

I’m deliberately trying to avoid any delineation between different styles of music here – ascriptions of valid or invalid ‘expression’ according to aesthetic criteria are even thornier ground. In essence, according to this conception, music can be seen as ‘expression’, and a protected right, unless it becomes, to borrow Mills’ term, a ‘nuisance’, whereupon it crosses over into ‘noise’.

The difference between ‘music’ and ‘noise’, of course, opens up numerous aesthetic and political economic debates. Jacques Attali’s landmark 1977 work Noise referred to the derogation of music that stood against normative and dominant social structures. Echoes of this can be felt in our everyday disagreements about music – ‘noise’ is a common enough put-down of music with which we lack the critical vocabulary or listening history to engage. But for the purposes of this post, I’m side-stepping the philosophical implications of musical aesthetics in relation to society. In borrowing Mills’ use of the word ‘nuisance’ I’m taking ‘noise’ to refer to volume and the unwanted sonic leftovers of any music impinging on people not engaging with it – from string quartet to thundering heavy metal.

But it’s worth noting that avoiding aesthetic politics isn’t always possible in practice, regardless of how open-minded you are. Some types of music (as Street and, before him Chevigny, noted) rely on certain types of instrumentation – a drumkit, for example, which (even played with brushes) imposes a minimum level of volume on any other instrument in the ensemble. Likewise, not all music can be played acoustically and some techniques – like feedback – positively require high volume levels.

All of this is can be felt in the application of legislation, even when it doesn’t prescribe or proscribe according to genre. The recent Live Music Act, for example, places different limits on amplified and unamplified music, but a solo trumpet can be louder than a quartet of electric guitars.

And this is where it becomes problematic for citizens and legislators alike. Certainly repressive regimes aren’t beyond legislating on aesthetic and genre grounds but, leaving aside questions of obscenity which tend not to refer to affect music without lyrics, liberal democracies tend to keep stylistic questions out of their national frameworks and local ordinances[1]. The emphasis here is most often on volume and as such unwanted music – of any kind – is usually on a par with any wanted sound. But, as we’ve seen, some musical expression requires volume, and a musical performance will also have an audience. So anywhere beyond a small level of population density – i.e. most towns and cities – the rights of the performers and their audience may come into conflict with non-participants in the event. In cases where competing, valid, rights are in play, whose should take precedence?

Balancing acts

One of the primary roles of government, national and local, is to balance between different sets of rights – and the particular claims that refer back to them. It’s easy enough to argue in favour of any particular case with reference to particular rights – but usually possible to make a counterclaim. There are several ways in which this pertains to live music – freedom of assembly vs public safety, for instance – but perhaps the issue of noise and disturbance is where it comes up most often.

It’s difficult to generalise about how government, local and national, responds to these competing claims; last week’s and forthcoming posts will look at some specific instances. But I’d like to finish with a couple of general points about how the value of live music is sometimes overlooked in such responses. Firstly, there’s the potential to default to a position whereby unwanted music is a disturbance – to lean towards the right of the complainant not to hear it. This is understandable in some ways – live music is intentional, not accidental, and so it could be said that it’s the gig that departs from the status quo (peace and quiet). But this assumes that the complainant is being reasonable (not always the case) and, more to the point, ignores the right to hear the music and to make it.

Secondly, there’s the assumption of musical assembly as potentially disruptive. Again, this is perhaps understandable at first glance. It’s easy enough to see how a noisy crowd spilling out of a rock gig, or at a rave in a field, can constitute a disturbance. But their rights to expression and enjoy themselves aren’t any different to any other group of people in a late night scenario or at, for instance, a sporting event when problems are more usually ascribed to the crowd – the people – rather than the reason for their gathering.

Live music is an ancient form of personal and public expression. Crucially, it’s one of the few forms of entertainment that’s open to just about anyone to engage in as producers as well as consumers, locally as well as nationally. Its contribution to economies – local and national – is increasingly recognised. Obviously priorities vary from case to case, and region to region. But as a whole, those who make and enforce legislation need to recognise that there’s more to live music than ticket revenues and sounds.

Adam Behr

Bibliography

Attali, J. (1977), Noise: The political economy of music, Manchester: Manchester University Press

‘China: Two Tibetan singers sentenced to two years in prison’ (2013) Freemuse website, n.d. Retrieved from:< http://freemuse.org/archives/6170> [Accessed 1 August 2013]

Cloonan, M., (1999),  ‘Pop and the Nation State: Towards a theorisation’, Popular Music, 18:2, 193-207

Mill, J. S., (1989), On Liberty: and other writings, Cambridge: Cambridge University Press

‘Orange Order outlines plans to avoid parades controversy’ (2013) BBC website, June 11. Retrieved from: < http://www.bbc.co.uk/news/uk-northern-ireland-22855790> [Accessed 1 August 2013]

Street, J., (2012), ‘From Gigs to Giggs: politics, law and live music’, Social Semiotics, 22:5, pp. 575-585

‘Tunisia: Rapper sentenced to two years imprisonment, violence in court’ (2013), Freemuse website, n.d. Retrieved from:< http://freemuse.org/archives/6180> [Accessed 1 August 2013]

[1] There are, of course, ignoble exceptions to this. One example is, the Criminal Justice Act of 1992, designed to combat raves, with its reference to ‘repetitive beats’ – surely problematic for a free public performance of a work by Philip Glass or Steve Reich. Another problematic rule involved the Met’s Form 696 risk assessment documentation, which required promoters to list the musical style and potential ethnic make-up of the event.
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