There’s a scene in episode three of the HBO series “Treme” — David Simon’s TV drama depiction of post-flood New Orleans — wherein Antoine Batiste, the itinerant trombonist played by Wendell Pierce, walks through the French Quarter after playing at a Bourbon Street strip club. It’s a gig he took only reluctantly, out of need, from the slim pickings around in New Orleans in late 2005. He’s tired, maybe a little drunk, and carrying his horn, sans case. He pauses before two street musicians on the corner of Royal and St. Peter streets, in front of Rouses Market. Energized by the version of “Ghost of a Chance” played by a pretty young violinist (Annie, portrayed by Lucia Micarelli) and a gangly young pianist (Sonny, actor Michiel Huisman), he sings a verse, nods in approval of Annie’s improvisation, then turns and half-staggers into the night. His trombone grazes the side-view mirror of a police car parked nearby. Then, in a rush –“Hey, you tryin’ to bust up our unit?” shouts one cop — Antoine is up against a wall, his instrument slammed to the ground by an officer. A minor beat-down and arrest follow.

Simon clearly meant to highlight the pressure-cooker atmosphere of New Orleans, especially within an undermanned and overburdened police force, in late 2005. And he foreshadowed a theme that courses through his show: the longstanding tension between the city’s culture bearers and its powers that be. That tension has ratcheted up, or at least has grown more pointed, since 2005.

Let’s say that “Treme” scene played out in real life, in June 2010: Police officers approach Annie and Sonny to inform them that playing music after 8 p.m. violates city ordinances, that even Antoine’s casual singing along is forbidden. They ask the musicians to read and sign their names and dates of birth on documents acknowledging receipt of a notice stating: “Effective immediately, the New Orleans Police Department will be enforcing the below-listed ordinance” — Section 66-205, which says, “It shall be unlawful for any person to play musical instruments on public rights-of-way between the hours of 8:00 p.m. and 9:00 a.m.”

In the real New Orleans, on June 12th, as the premiere season of “Treme” drew to its close, having celebrated the street musicians and brass bands of New Orleans as something like heroes, just such notice was served by quality-of-life officer Ronald Jones Jr. on the To Be Continued Brass Band (that’s to be continued, as in a cultural tradition). They’d set up shop, just as they’ve been doing most Tuesdays through Sundays since 2002, on the corner of Bourbon Street and Canal, in front of the Foot Locker store. At issue here were two ordinances: the above-mentioned Section 66-205, as well as Section 30-1456, prohibiting street entertainment between 8 p.m. and 6 a.m. within the entertainment section of Bourbon Street, from Canal to St. Ann streets.

OK, forget TV fiction: For irony, one need look no further than a new series of television ads created by Peter Mayer Public Relations for the New Orleans Convention & Visitors Bureau, urging viewers to “book your New Orleans reservations right now.” At one point, trumpeter Irvin Mayfield looks straight into the camera: “Right now in New Orleans,” he says, “you can hear great jazz in the streets of the French Quarter.” Behind him is dark of night, likely past 8.

In New Orleans, it’s not unusual for folks to line up behind a brass band, much as in a second-line parade, in order to make their voices heard on matters of public policy. In January 2007, a crowd of 10,000 strong followed the Hot 8 Brass Band toward City Hall to demand better and more sensitive police protection in the face of violent crime. By June 29, 2010, more than 15,000 folks had signed on as Facebook followers of the page “Don’t Stop the Music. Let New Orleans Musicians Play!” which was created by Lisa Palumbo, who teaches marketing at the University of New Orleans in addition to managing the To Be Continued band. In a brief interview posted on YouTube, To Be Continued trumpeter Sean Roberts described his frustration. “What they’re doing is slowly but surely killing the New Orleans tradition,” he said. “I learned how to play trumpet on this corner.”

On June 16, the city’s new police superintendent, Ronal Serpas, issued a statement to deflect the groundswell of protest: “The New Orleans Police Department’s 8th District has for many years, and as recently as within the last several weeks, received numerous complaints from residents of the French Quarter noting that musical street performers are violating existing ordinances. These complaints have also resulted in repeated requests for enforcement from the NOPD.”

To Be Continued wasn’t the only band to receive notice: A night before its encounter, the Young Fellaz Brass Band was effectively shut down at the corner of Frenchmen and Chartres streets in the nearby Marigny neighborhood, as was the Lil People band that same week, according to accounts posted on Facebook. As NOPD spokesman Bob Young described it, “This is not enforcement per se. No one was cited. They were presented with a letter advising the musicians that they were in violation of the law.” Scott Hucheson, adviser to the mayor on cultural economy, called it “an information exercise.” The new administration of Mayor Mitch Landrieu and Police Superintendent Serpas’ force are by many degrees kinder and gentler in their approach to such matters than those of the former mayor, C. Ray Nagin, and the previous superintendent, Warren Riley. In the past, quality-of-life enforcement sometimes meant sending a dozen or more cruisers, ripping mouthpieces out of hands and slapping on cuffs. Still, serving notice of these ordinances and requiring signed acknowledgment seem tantamount to enforcement. At least the message is clear enough: Your next note is illegal.

Landrieu, who took office May 3, and a newly elected City Council must ultimately address the tangle of city ordinances that inhibit or even prohibit the very street culture that drives New Orleans’ lore and lure. None of this is new stuff: There’s a rich history of musicians being arrested while making music in New Orleans. When I first began interviewing musicians, I was shocked to learn that just as surely as the horn players I spoke with had soaked up musical tradition from authoritative sources like Anthony “Tuba Fats” Lacen, a beloved musician and bandleader who died in 2004, so too had they been introduced to this other legacy — arrest while playing — by badge-wearing authorities. Even Tuba Fats got arrested. More often than not, the way musicians tell it, the police tasked with enforcement knew him. They’d take him in to the station, show him a bit of hospitality, send him off 30 minutes later. It was as much a game as a show of force. But it served a purpose.

At her law office in a MidCity shotgun house earlier this year, civil rights attorney Mary Howell — whose work inspired the character of attorney Toni Bernette in “Treme” — recalled for me how she began defending musicians on a regular basis more than three decades ago. A nearby picture frame held Matt Rose’s 1996 photograph, which ran in the Times-Picayune, of musicians marching after one such incident: There, next to a 10-year-old Troy Andrews — better known as “Trombone Shorty” these days and, just last week, a guest on “Late Night With David Letterman” — is a teenage snare drummer wearing a sign: “I Was Arrested for Playing Music.” The French Quarter, where tourists regularly get their first encounter with New Orleans music, has long been contested space, she explained. And throughout the city, music still has a surprisingly uneasy relationship with established law. “The citywide curfew ordinance regarding music is completely overbroad and obviously unconstitutional,” she says. “And it’s unenforceable.”

Section 66-205 could be construed to prohibit a lone guitarist strumming on a corner or someone playing harmonica to no one in particular in the street. Same for Section 30-1456, which, curiously, pertains to a stretch of Bourbon Street filled mostly with bars that blast recorded music well into the night. Add to this, Howell explains, that in 1974 the city passed a zoning ordinance that actually prohibits live entertainment in New Orleans, save for spots that are either grandfathered in or specially designated as exceptions. Those interior shots in “Treme” faithfully depicting the vibe at Donna’s Bar & Grill and Bullet’s Sports Bar? Grandfathered in, or they’d be technically illegal. Current zoning restrictions could, without much of a stretch, be construed to prohibit band rehearsals, parties with musical entertainment, even poetry readings. “It’s a draconian ordinance,” says Howell, “and a blanket over the city.” The very idea is mind-boggling to those who live outside New Orleans: a city whose image is largely derived from its live musical entertainment essentially outlawing public performance through noise, quality-of-life, and zoning ordinances.

When it comes to music in the streets, Howell says, “My position is, look, we don’t have garage bands in New Orleans because we don’t have garages. Where are these kids going to play? Where are the incubators? People think this is easy. This is hard. You have to have a repertoire, interact with audience, play your instrument well, and entertain. The streets are incubators and critical venues.”

According to Joe Maize, a trombonist with the To Be Continued band, the take at the corner of Bourbon and Canal streets is “a significant chunk of our income.” Shut that down, even for a stretch as city officials rethink policy, and you tighten the screws on what is already a marginal living. “But it’s not really about the money,” he said. “All we want to do is have somewhere we can play our instruments every day. People wonder why we sound like we sound, how come we can relate to the crowd like we do. Well, we call Bourbon Street our practice room. We experiment on Bourbon Street crowds, and they tell us what works.”

For Maize and his band mates, when quality-of-life officer Jones rolled up to To Be Continued’s corner, notice in hand, it smacked of disrespect if not disenfranchisement. “It felt like the police can decide to tell us whatever they want to tell us whenever they want to tell it to us,” says Maize, “to run us off our home base whenever it suits them.” He said he just wants to be part of the conversation. “We’re reasonable guys, we just want to work out a situation where we can play where we need to play.”

Carol Kolinchak, an attorney who has defended many musicians, has joined Howell in representing the To Be Continued band and pushing for negotiated solutions. “The larger issue for the city,” she said, “is that we all have to learn to work together to support our culture and not just trot it out whenever it’s convenient for marketing purposes or to score political points.” (Brass bands are regularly hired in New Orleans for all manner of marketing and political functions.)

Maybe there’s always been a culture war in New Orleans. But since 2005, each skirmish takes on heightened significance. And each time I hear someone in New Orleans, whether a musician or artist manager or club owner, lament the lack of effective branding and promotion (the self-designation of Austin, Texas, as “Music City” gets mentioned a lot), I have to think, Well, doesn’t respect begin at home? That, and how can you wholeheartedly promote something that is on the one hand touted and on the other kept on the run like an outlaw?

Beyond practicality and promotion, there’s a deeper read to all this. Michael White, a clarinetist who began his career in brass bands and is now a Xavier University professor, told me: “There’s a feeling among many that some of our older cultural institutions are in the way of progress and don’t fit in the new vision of New Orleans. That they should only be used in a limited way to boost the image of New Orleans, as opposed to being real, viable aspects of our lives.”

Nothing in New Orleans is not about race. Considering that brass bands are for the most part formed by young black men and are playing primarily a music born of black tradition, that Landrieu is the first white mayor in New Orleans since 1978, that the New Orleans City Council has a white majority for the first time in more than two decades, and that the city’s population, though still majority black, is less so since Hurricane Katrina, it’s hard to ignore the potential racial repercussions here. And everything in New Orleans somehow relates to class divisions: Though most would agree with what pianist Ellis Marsalis once told me, that whereas in most cities culture trickles down from the top, in New Orleans it bubbles up from the street, there is often disdain or at least condescension regarding brass bands and other elements of local street culture among professionals seeking a more burnished image for their town.

None of which implies that homeowners and businesspeople are wrong to assert a need for rules and regulations and that civility requires a certain degree of, well, quiet time. The rich history of the French Quarter includes its various incarnations as a neighborhood. The Vieux Carré Property Owners, Residents, and Associates, a nonprofit corporation formed in 1938, takes as its mission, “to preserve the Vieux Carré as a national treasure, to maintain its quaint and distinctive character and to achieve in that historic, living neighborhood a quality of life which can be enjoyed by residents, fellow citizens, businesses and visitors.” And yet it is unclear whether musicians playing at night, or which musicians and what locations, would truly threaten that character; some argue that the presence of a brass band here adds historical correctness and a certain luster to the ambience. In the case of the To Be Continued band’s corner, where Bourbon Street spills into the French Quarter off Canal Street, a main business thoroughfare, the logic of the ordinance is particularly strained. “The brass band is never a problem for us,” Don Zimmer of the Astor Crowne Plaza, a hotel on that spot, told Times-Picayune reporter Katy Reckdahl, adding: “… for us, they’re part of the excitement of the gateway to Bourbon Street.” There’s another truth to confront: These days, Bourbon Street offers little in the way of New Orleans jazz; instead, there’s mostly loud rock, R&B and karaoke. The To Be Continued band’s music may be the first and last jazz a visitor will hear heading that way.

For musicians like Maize, making music on the streets is a viable alternative to other versions of street action. At a June 18 rally in the French Quarter’s Jackson Square, Revert “Peanut” Andrews, a trombonist with the Dirty Dozen Brass Band, told a reporter: “If it wasn’t for the music and these streets, I don’t know where I’d be. I don’t want to think about where I’d be.” The rally was organized and led by his cousin, Glen David Andrews, also a trombonist. Glen David, who, at 30, has been arrested more than once in his life while playing his horn, is among the city’s most forceful musicians on and off the bandstand. “We’re not bending on our position,” he told me over the phone the next day. “We’re here to play. We’re going to play. As a culture, we’ve been doing it for 100 years or more, and we’re not about to stop.” And yet he sounded a positive if not conciliatory note. “We don’t want to make it seem like it’s the musicians against the city,” he said. “We have a new administration, we have a new day in New Orleans, and I think we can all sit down and talk about this.”

In fact, that’s what’s going on right now, in the offices of City Council member Kristin Gisleson Palmer (whose district includes the streets at issue in the To Be Continued band dust-up, and several other popular spots for street music) and of mayoral adviser Hucheson, and involving a number of interested parties — among them, David Freedman, general manager of the beloved, listener-supported WWOZ-FM. “It’s time we got this right,” Freedman told me.

The To Be Continued band has been out on its corner every night since June 12, playing past 8 p.m., as onlookers hold signs with slogans like “Don’t Stop the Music.” The musicians proceeded without incident, but other bands, like the Lil People, have been shut down again in the past week. Yet Palumbo has been cautious. “My primary concern is the law that affects the To Be Continued band directly, so that we can keep doing what we’ve always done,” she said. “But I think we can address these laws in a way that respects everyone’s needs.”

Brian Furness, president of the French Quarter Citizens organization, echoed that sentiment. “It’s important to enforce the laws as they stand, but these are complicated issues that need careful consideration. I think there may be a way to address everyone’s position, and that most homeowners and businesspeople are open to that.”

The formal statements issued during the past two weeks have contained positive hints. A joint statement from Landrieu and Palmer talks about “an obligation to protect and support the very things that make our culture so authentic. … It is possible for musicians, residents and businesses to co-exist in the French Quarter and across the city. It requires having ordinances that make sense, that are clearly communicated to the public and that are properly enforced.” It’s a tough time for Mayor Landrieu and NOPD Superintendent Serpas to give this issue due attention. On June 25, Serpas announced a major reorganization of the department, conducted just as the U.S. Department of Justice begins a civil investigation into the NOPD. And topping Landrieu’s to-do list is dealing with the fallout from the continuing environmental disaster from the failed BP oil well.

Yet issues pertaining to music and culture remain elemental to the city’s continued recovery and its ongoing identity. And Landrieu seems uniquely equipped and predisposed to address them in a logical and sensitive manner. In his previous job, as lieutenant governor of Louisiana, Landrieu fostered an aggressive cultural-economy agenda, which included high-profile conferences and specific legislation creating tax incentives for the film and music industries. Prior to that, as an attorney, he successfully litigated a 1998 case on behalf of French Quarter clubs that facilitated the striking down of the state’s “amusement tax,” which some considered a plague on the New Orleans music and entertainment industry. As seems required in politics these days, Landrieu, upon taking office, promised “change.” And yet his call had a specific flavor. “Change, real change, transformative change, enduring change, comes from the streets,” he insisted during his inaugural address at Gallier Hall. So too, he well knows, does the culture he wishes to promote. His approach to the current cultural matter reflects as well on his role, announced earlier this month, as chairman of the U.S. Conference of Mayors Tourism, Arts, Parks, and Entertainment & Sports Committee.

Now is a moment for Landrieu to signal a clean break from the policies (or lack thereof) of his predecessors, and of long-standing but ill-serving local laws relating to culture, by leading a charge toward sensible reform and rewritten ordinances. While he and his City Council consider the ordinances that tell bands like To Be Continued to keep quite past 8 p.m., why not revisit the full scope of cultural policy that is at odds with New Orleans’ true identity? Why not open the door to a more sensible approach to zoning, and why not give a place at the policy table to musicians and culture-bearers so prominently featured in the tourism ads?

It may well be a new day in New Orleans. Councilwoman Palmer met with members of the To Be Continued band earlier this week, and held another meeting with stakeholders in this issue. “We’re at a really great point,” she told me, “where, instead of simply reacting, we can craft better policies that reflect how we really feel about culture.” She said that all the relevant ordinances are on the table and that she and Landrieu are intent on following through.

Episode three of “Treme” featured another scene worth remembering. Trombone Shorty sits in the green room prior to a New York City post-Katrina benefit concert, eating a slice of pizza and talking to fictional trumpeter Delmond Lambreaux (played by Rob Brown): Delmond is a New Yorker now, swept up in a modern-jazz milieu that makes his hometown seem, to him, somewhat backwater.

“Don’t you miss home?” Shorty asks.

Delmond doesn’t miss a beat. “In New Orleans, they hype the music but they don’t love the musicians. The tradition is there but that city will grind you down if you let it.”

Fictional though he may be, Delmond has a point.

A while back, Mary Howell recalled for me a time, in late 2005, when “illegal music” was all over town. “Music was popping up everywhere,” she said. “In places that never had it and never will have it again, in some that have since been shut down. That was a sign of life, a blood transfusion, a hit of oxygen when we needed it.

“I used to get worried that this specific law or that policy would crush the music,” she said more recently. “But I’ve found some relief in finally and deeply understanding that these laws are problems — they are obstacles, irritants — and they are problematic — unjust, unequally enforced. But the thing is that the music and the culture survives despite it, and finds its way around, over, and under these laws.”

She’s right, and yet this deep and abiding truth perhaps invites a dangerous notion: that a culture developed in opposition to subjugating force requires or is somehow served by or at least lives well in spite of the occasional, capricious and overriding slap-down. But a culture born of struggle needn’t be condemned to struggle, a music that won’t die doesn’t have to endure blow upon non-lethal blow. If New Orleans wishes to restore or even re-create itself, the city would do well to think about this idea.

I’ll never forget, in 2007, at one of Landrieu’s cultural-economy forums, Grenada’s Ambassador Denis G. Antoine saying, at the height of a crime wave: “New Orleans is a perception. When we talk about safety: How safe do you feel? It’s not just about crime, it’s about how safe do you feel to be you?”

Thus far, Palmer and Landrieu, just months into their respective offices, are sounding the right notes regarding recasting a cultural policy that has long been woefully out of tune. Maybe they can do as the brass bands do: Pick up the rhythm, and collectively improvise something useful that everyone can fall in line behind. We’d all feel safer.

Larry Blumenfeld has written about New Orleans culture, politics and recovery for Truthdig, The Wall Street Journal, The Village Voice, Salon and other publications. He was a 2006-7 Katrina Media Fellow for The Open Society Institute.

Your support matters…

Independent journalism is under threat and overshadowed by heavily funded mainstream media.

You can help level the playing field. Become a member.

Your tax-deductible contribution keeps us digging beneath the headlines to give you thought-provoking, investigative reporting and analysis that unearths what's really happening- without compromise.

Give today to support our courageous, independent journalists.