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.
