Notes from the Chair

June, 1997

The children of Boulder have been saved! No, the threat this time isn't the Ramseys' well-dressed mystery man, or brick- throwing students, or insolent sitting hippies. It's a four- inch tall mall performer, a lovebird named Gogol, and its sidekick Kenneth Lightfoot. Lightfoot was warned by a police officer that he would have to get a permit for his bird act, and that the bird could only be on the mall while actually performing, not between acts.

The Daily Camera quotes Kathy Morgan of the Downtown Management Commission as justifying the rule: children have been pecked or bitten by animals before on the mall, and even though Gogol seems small, the rules must be applied uniformly to be fair. She said "It's difficult to make an exception, and the rules are for the good of the whole of society".

That phrase, "the good of society", always sounds chilling to me, because it's usually invoked when it's difficult to actually find a party who is harmed. The rule isn't for the good of Kenneth Lightfoot, obviously, or Gogol, or the packs of shoppers who enjoy his shows. Presumably it's for the good of a hypothetical child that might someday be pecked. But come on -- the mall is full of wild pigeons and sparrows, none of which make a living showing off how well trained they are. If Gogol's even mildly dangerous, then the sparrows are disaster-movie fodder in comparison. And how will the permit help, unless Lightfoot tapes it over Gogol's beak?

Of course the Downtown Management Commission knows this, and actually it's a good sign that they understand the basic issue -- treating people fairly. If we pass a law against any animals on the mall, and give the police discretion in applying it, we all know what will happen: Gogol will stay, little yippy Chihuahuas carried under tourists' fur coats will stay, and ferrets owned by rainbow people will get tickets.

This should all sound familiar, because we've just been through it with the recently rejected sitting law. A remote fear (performing tigers devouring children, pedestrians trapped amid a seated and belligerent crowd) combines with a vague prejudice (dirty street performers who work without filling out W-4 or I-9 forms, dirty pot-smoking hippies) to create an overly broad law empowering police to turn prejudice into policy.

The solution is difficult because it means accepting that on a legal, political level, shopping and Sunday strolling should not be favored over loitering, busking, and hackeysacking. Snide tourists walking through a hippie campsite can annoy the hippies as much as an aggressive panhandler can annoy a tourist, and the law should recognize that equivalence, even though we tend to think of the mall as being "for" shopping, not camping.

One could make the argument that places like the Hill and the Pearl Street mall should be privately owned and operated, like Crossroads mall, so that the owners really would have a right to say what activities are preferred there. But I personally believe that it's important to an open society to have some "public" places where anyone is welcome, anything goes, and where each individual is expected to be tolerant of just about anything short of violence from other people. The Libertarian vision doesn't allow for government provision of such public places, but I wouldn't support abolishing them unless and until we come up with a non-coercive, non-tax-funded alternative.

Until then, rules for public places have to be the absolute minimum to allow people to go about their business. No blocking the sidewalk, and no ravenous man-eating tigers. Beyond that, if you are annoyed by chirping birds, the fragrance of patchouli, or the sound of ringing cash registers, well, we have some very nice ghost towns just a few miles up the canyon where you might feel more at home.