By Charles Levendosky, Editorial Page Editor, Casper Star-Tribune
Sunday, November 19, 1995: New York Times Wire Service
On October 26, New York City's federal judge Miriam Cedarbaum
ruled that visual art is not protected by the First Amendment.
The judge gave her ruling in a lawsuit that artists brought
because they were arrested, harassed, and fined for selling their
art on the city's sidewalks without a license.
One wonders where the judge learned First Amendment
jurisprudence.
New York City has a vending ordinance that makes it unlawful for
an individual to sell items on the street without a license. The
exception to this law refers to anyone who hawks, peddles, or
sells newspapers, books, periodicals, pamphlets, or other similar
written matter.
The city allows the exception because it is firmly established
in First Amendment jurisprudence that those who sell newspapers
or hand out pamphlets or written commentary cannot be required to
obtain a government license.
Somehow the judge couldn't make the leap from written expression
to artistic expression.
In 1993, then-mayor of New York City, David Dinkins, signed a
new vending law that said that vendors of printed matter could
sell or give away their material without a license on any street
or sidewalk where other vendors were allowed.
Visual artists then began to appear on the streets attempting to
sell their work under the same protections offered to those who
hawk printed matter.
According to Robert Lederman, president of the arts advocacy
group A.R.T.I.S.T., New York City has arrested more than 200
artists since 1993 and confiscated their paintings, sculptures,
and photographs under a forfeiture provision. The art was later
sold at police department auctions. Art that didn't sell was
destroyed.
New York City only grants a limited number of vendor licenses-
853, to be exact. Except that any New York resident who is a
veteran of any war or who has served overseas can obtain a
license anytime regardless of the established limit on licenses.
But many artists can't obtain licenses to peddle their work on
the streets. They were told there was a waiting list, but it was
closed. And on some occasions, department officials told artists
they didn't need a license.
And - Catch 22 - the Department of Consumer Affairs which issues
all vending licenses also admitted in the city's legal brief that
there are no licenses available for artists who want to display
or sell their art.
There is a great irony here: Artists cannot obtain vendor
licenses because of the limit or because there are no licenses
for them, but if they try to sell their work on the streets
without a license, they are arrested. An artist cannot sell his
original work on the street, but if it appears as a copy in a
book, he can.
However, the judge says that's fine, the city isn't violating
their free speech rights. Wrong.
The First Amendment protects a great deal of human expression
that isn't written: raising or burning flags, wearing or torching
symbols, T-shirt logos, black armbands, picketing,
demonstrations, sit-ins, parades, music, motion pictures, and
political cartoons, among other political or creative activities.
In Burstyn v. Wilson, 1952, the U.S. Supreme Court reversed
earlier decisions and ruled that motion pictures enjoy First
Amendment protection. It must be assumed that silent movies
would also be protected. Words aren't essential to whether an
expression is protected.
It seems ludicrous that Judge Cedarbaum denies that visual art
is protect by the First Amendment. The judge wrote in her
opinion that "art does not carry either words or the
particularized social or political messages upon which the First
Amendment places special value." Wrong again.
The U.S. Supreme Court earlier this year in Hurley v. Irish-
American Gay, Lesbian and Bisexual Group of Boston - the St.
Patrick's Day march case - said, " a narrow, succinctly
articulable message is not a condition of constitutional
protection, which if confined to expressions conveying a
particularized message would never reach the unquestionably
shielded painting of Jackson Pollock ..."
Furthermore, in Hauge v. CIO, 1939, the U.S. Supreme Court
decided that the American public has the right to use sidewalks
and streets for speech activities. The right, according to the
court, "must be exercised ... in consonance with peace and good
order; but it must not, in the guise of regulation, be abridged
or denied."
The city has the authority to regulate art vendors on the
sidewalks to maintain traffic flow and public safety. But the
city cannot, in the guise of a neutral law, abridge their
activity.
Judge Cedarbaum ignored the fact that artists couldn't get
vendor licenses, ignored the fact that the visual arts fall under
the protections of the First Amendment, and ignored solid
constitutional law.
The judge stated in her opinion that because the regulation is
content-neutral - that is, it doesn't care what the message says,
a license is required. Unless, of course, it is a written
message.
She wrote: "When a regulation is content-neutral, courts engage
in a balancing test to determine whether the impact on freedom of
expression outweighs the government's interest in the
regulation." This is simply not true, as any First Amendment
expert can tell you.
First of all, a government agency cannot prefer one form of
communication over another, without a compelling interest. The
city cannot give preference to written material over visual arts.
Secondly, the city would have to show a substantial government
interest in not allowing art vendors to exercise their First
Amendment rights. Then the city regulation would have to be
narrowly tailored to achieve that end, and finally other channels
for artists selling their own work must be available.
Obviously those conditions were not met by the city.
Just as obviously, Judge Cedarbaum is abysmally ignorant of
First Amendment law.
It took her a year to come up with this travesty. This federal
judge needs a basic course in constitutional law.
Used by permission Charles Levendosky, Casper Star-Tribune.
Charles Levendosky can be reached at: editorial@trib.com
For more information about this case or about A.R.T.I.S.T.,
contact Robert Lederman: ARTISTpres.aol.com