Jazz Vs. New York’s Caberet Laws

Michael Steven Smith

Jazz and the Cabaret Laws in New Yokr City
by Paul Chevigny
New York and London: Routledge, 1991, paper $14.95.

“I’d rather drink muddy water, sleep out in a hollow log
Than be up here in New York treated Ike a dirty dog.”
—-Jack Teagarden, trombonist and vocalist

I REMEMBER HEARING the late, great Chet Baker twice. He was playing in a tiny neighborhood joint on LeRoy Street and Seventh Avenue, near where I lived in the Village. As I listened a crime was being committed.

It was 1975. What Baker was doing was against the longstanding laws of New York City. His crime? Playing trumpet. The cops fixed him and the owner of the club in a hurry. I never saw Baker again before his death years later.

New York City’s scandalous Cabaret Laws did in Baker at the joint. Stopped him from playing. In 1988 Paul Chevigny, attorney and jazz fan, started the victorious lawsuit on behalf of the musicians’ union that finally did in the Cabaret Laws. In Gigs he tells the story, dedicating the book to “Thelonious Monk, J.J. Johnson, Billie Holiday, Buell Neidlinger and all the other good musicians who had a problem with the Cabaret Laws.”

Chevigny got the law thrown out on First Amendment grounds that it violated the artists’ right to free expression. How did the Cabaret Laws do this? How did they prevent jazz musicians from playing their music? Restricting where live music could be played, limiting the number of persons in the band, outlawing certain instruments and preventing certain persons from getting licensed, the Cabaret Laws held sway for two generations, from 1926-1990, spanning nearly the whole of the history of jazz.

Zoning laws kept jazz out of most neighborhoods and gilt-edged commercial districts. Trios were the biggest groups allowed. The artists couldn’t play percussive instruments like drums, which are essential to the beat, or brass instruments, or reeds like the saxophone, the most expressive of all instruments.

To top it off, until urbane and liberal Mayor John Lindsay was elected in the 1960s, the city would not license musicians with a criminal record-—like smoking marijuana or doing harder stuff. So Billie Holiday and Charlie Parker got the ax. So did Lenny Bruce for that matter. They couldn’t play in the clubs and had a hard time making a living.

Roots and Repression

Jazz came into being just prior to World War I in New Orleans and traveled north to the great railroad hub of Chicago and to New York. It became the music of the whole African-American people, reflecting the novel ironies of their harsh lives in city slums and heavy industry. In New York the music took root in Harlem, and then around World War II on the legendary 52nd Street, then in Greenwich Village. To the musicians, the Cabaret Laws represented discrimination and degradation.

For years before the American Federation of Musicians Local 802 hired Paul Chevigny to bring the lawsuit, it historically had bad relations with jazz musicians. “The union failed for the most part to organize the clubs, and when scale was set by the union it was still very low.” The union frequently did not collect pension and welfare benefits, having a cozy relationship with some of the club owners, but did make sure that only the prescribed number of musicians were playing and all had paid their dues.

But by 1983 the union officials had changed. They had a meeting of the artists to sound them out, eventually hiring Chevigny, who at first was dubious.

“In my experience lawsuits, at least about public issues like the Cabaret Laws, were almost never successful They seldom are won in court, and even when they are won they often fail to bring about the expected results.”

Chevigny did think that the suit could organize and galvanize people It was “a device of last resort,” but he was willing to try it. The suit he filed sought to reject the three-musical limit as well as to end discrimination against horns and percussion instruments.

The history of litigation against other repressive Cabaret Laws was discouraging. For twenty-five years New York had a law against musicians being allowed to play unless they were fingerprinted, interviewed, then licensed. They were forced to carry a cabaret card, which they got if found “of good moral character.”

The learned and skillful Leonard Boudin, probably the finest constitutional lawyer of his day, sued, with the help of the American Civil Liberties Union, to eliminate the fingerprinting and identity cards. This suit was lost; identity cards were abolished later by the administrative flat of Mayor Lindsay.

Free At Last

David Amram, jazz musician and noted classical composer, supported the union’s suit with a compelling affidavit “It is difficult to imagine a more stringent control, short of absolute prohibition, on the expression of music than the one created by the New York City laws.”

Without wind, brass and percussion, Amram swore, the history of jazz would have to be rewritten. “It is difficult for me as a composer to picture what it would be like to be restricted to creating only for strings and keyboard. It would be like trying to play baseball without the use of outfielders and a catcher.”

The suit was assigned to new Acting Justice David Saxe, who—-ten years earlier—-had been Director of Enforcement for the city department whose job was to enforce the laws he was now asked to overturn. The city defended the law on the basis that the spread of more music would cause pedestrian and automotive congestion that might “result in the diminution of quality of life in that area.”

The city moved for summary judgment, stating that they were so clearly right a trial was unnecessary. Judge Saxe also thought a trial was unnecessary. On January 28, 1988, in a stunning decision he took the city’s motion, “turned it on its head” and in a rare move granted summary judgment-—for the musicians.
“The content of the music,” Saxe wrote, “cannot be separated from the number of musicians and instruments needed to create a work of art.” Dismissing the city’s defense, he ruled that they had presented no evidence “to demonstrate that the number of musicians bears any relationship to automotive or pedestrian traffic.”

Surprised and overjoyed, Chevigny wrote that Judge Saxe “decided that the system ought to go and he got rid of it.”

More places have now opened up for musicians to play and learn and grow. Nonetheless, for both musicians and club owners in New York jazz remains a marginal economic activity. Musicians get showcased in the clubs; but they make a living playing in Europe, where they are not confined to saloons and restaurants and where their music, “American classical music,” is afforded the respect it hasn’t always gotten here.”

November-December 1993, ATC 47