The Day The Music Died

Legal Corner

Volume CVII, No. 6June, 2007

Harvey Mars, Esq.

I think my clients are about to break the law. And I don’t think that I will be able to stop them.

Let me back up. Attorneys spend the greater portion of their time counseling clients on the legal ramifications of the actions they intend to take, to prevent them from running afoul of the law.

Lawyers are expected — even duty-bound under the rules of professional responsibility — to advise their clients not to engage in activity that knowingly transgresses the law.

Recently, however, I found myself in the rather unique position of providing counsel to individuals who I thought might break the law and who in fact were unequivocally going to be arrested if they did.

I would like to take this opportunity to share with you some reflections on this experience.

On April 13, I was among the throngs of protesters in attendance at the demonstration at Tonic, the now defunct venue where musical artists had been permitted to develop their muse without constraint by commercial restrictions.

From what I have since learned, Tonic was the last of its kind in New York City.

(Other clubs that offer experimental music are either smaller, in more marginal locations, pay less, or all three.)

At the Tonic demonstration, I was asked if I could provide assistance and counsel to any protester who refused to vacate the building once the New York City Police Department was inevitably called into action.

I decided to lend a hand.

This was not going to be the usual day in the office for me.

Apparently, the owner of the building where the club was located had terminated Tonic’s lease due to its inability to pay rent.

The demonstration was meant to call attention to the cultural crisis the club’s closing would be precipitating in New York.

The primary objective was to convince the building’s owner to reconsider his decision.

Ultimately, the owner did not come to the club to retrieve his keys.

Instead the building’s owner pressured the proprietors of Tonic to oust the protesters or face severe financial penalty.

Two protesters, Marc Ribot and Rebecca Moore — two recording artists I had the pleasure of working with during the KnitMedia litigation — refused to leave as a matter of principle.

Ultimately, they were arrested on criminal trespass charges, a misdemeanor.

(Pictures of the arrest can be found at

In addition to listening to several amazing performances, a good portion of my time was spent conversing with the police officer assigned to watch the demonstration.

I attempted to develop a rapport and convince him that this was a peaceful protest with a legitimate purpose, so that he would report this back to his superiors.

He promised to send individuals who were calm and cool, once his shift was over.

The goal was not to prevent the protesters from getting arrested should they choose to stay: that was an inevitability which could not be averted.

The goal was to prevent an escalation of this demonstration into a major police action.

It was also to make sure that Marc and Rebecca were treated properly and were given the benefit of a desk appearance ticket instead of being brought to central booking and having to spend the night in jail.

The outcome of this ordeal is far from over.

Recently, there were further demonstrations on the steps of City Hall.

Whether this and other protests will have any effect is anyone’s guess.

Personally, I hope that they do.

Marc and Rebecca’s fate also remains uncertain. It seems likely that the building’s owner will not press charges.

In any event it is unlikely that they will spend any time in jail.

In retrospect, I was proud to be a part of this demonstration which was living proof of the vitality of Henry David Thoreau’s essay “Civil Disobedience”:

“Unjust laws exist: shall we be content to obey them, or shall we transgress them at once? If it is of such a nature that it requires you to be the agent of injustice to another, then I say, break the law.”

Here, it was not an unjust law — like Thoreau’s poll tax — which was being protested. It was the unjust consequences of the building owner’s actions.

While I can’t imagine a scenario where I would willfully counsel a client to break the law — as Thoreau undoubtedly would — the situation at Tonic came very, very close.

Harvey Mars is one of Local 802’s legal counselors. Legal questions are welcome from 802 members. E-mail them to Nothing in this article should be construed as formal legal advice given in the context of an attorney-client relationship.