by A.R.T.I.S.T. (received 1/31/96)
provided through OPENAIR-MARKET NET
For the past three years New York City has engaged in a policy of
arresting artists for selling their own original art on the street without a
license. Once arrested their art is confiscated and forfeited, usually
regardless of their case's outcome in court. After more than 200 such
arrests, none of which were brought to trial in Criminal Court, artists
filed a Federal suit [Lederman v. City of New York 94 Civ. 7216
(MGC)] charging the City with violating their First and Fourteenth
Amendment rights.
The City claims that arresting artists protects the public's health, safety
and welfare by preventing "congestion". By City Council decree only 853
vending licenses are allowed to be in effect at any given time.
The City admits in its own brief that artists cannot obtain a vending
license. The previous Commissioner of Consumer Affairs, Richard
Schrader, submitted an affidavit stating that it would take from three to
five years to apply for a vending license; that in some years not one was
issued; and that he knew of no artist who had succeeded in obtaining one.
According to the Department of Consumer Affairs, the present waiting
list of 5,000 applicants to apply for a license is closed. New applicants
are advised that they should check back, "every few years". Even an
application form is presently unavailable. For many years the
Department, both verbally and in writing, told artists they were
"...protected by the First Amendment and didn't need a license to sell
their own art".
The vending ordinance has exempted books, literature, baseball cards and
other similar written matter from the licensing requirement since 1982,
based on the First Amendment freedom of speech and the press. The City
allows an unlimited number of unlicensed vendors of written matter and
a similarly unlimited number of licensed veteran vendors selling anything
they like, including paintings. Veterans can obtain a vending license
within one to three months.
Plaintiffs claim that the City has unconstitutionally prohibited their visual
speech and, without any rational basis, discriminated against visual
expression in favor of written expression. The City offers no rational
basis for this discrimination, other than to reaffirm that its ban on street
art is in the interests of preventing congestion.
Plaintiffs indicate over fifty years of Supreme Court, Appellate and State
Court rulings affirming visual art's First Amendment protection, and
similar precedents affirming that City sidewalks are a legal forum for
First Amendment protected activities. Plaintiffs further claim that the
City's total ban on art violates constitutional requirements for strict or
intermediate scrutiny of restrictions on speech. Federal standards require
that, to withstand strict scrutiny, a restriction must be the least
restrictive means of accomplishing a compelling government interest. Under
intermediate scrutiny a regulation must be designed so as to further a
significant government interest while not burdening more speech than is
necessary and leaving ample alternative channels of communication.
According to plaintiffs, all that would be necessary to protect the
government's stated interest in preventing congestion would be to require
artists to follow the same time, place and manner of display rules that
book and other vendors must obey.
On October 24, 1995 Federal Judge Miriam Cedarbaum denied plaintiffs
request for injunctive relief (a temporary ban on further artist arrests
while the case is decided) based on her determination that, "...written
matter is the heartland of the First Amendment", and that, "plaintiffs' art
does not carry either words or the particularized social and political
messages upon which the First Amendment places special value". The
City immediately renewed its policy of arrests based on the judge's
ruling.
An appeal of the ruling was filed on 1/22/96. Joining the case by filing
amicus briefs in support of plaintiffs position were The Museum of
Modern Art, The Whitney Museum The A.C.L.U. the N.Y.C.L.U.,
Volunteer Lawyers for the Arts, The College Arts Association, The
N.Y.C. Arts Coalition, The N.Y. Foundation for the Arts, SoHo art
dealer Ron Feldman, artists Clae Oldenburg, Coosje van Bruggen, Chuck
Close, Jenny Holzer, Hans Hacke, David Hammons, and art critics Irving
Sandler and Simon Schama.
For more information contact: Robert Lederman, president of A.R.T.I.S.T. (Artists' Response To Illegal State Tactics) (718) 369-2111.
E-mail:ARTISTpres@aol.com or visit the A.R.T.I.S.T. web sire at: http://homepage.interaccess.com/~mar/nyc.html
Plaintiffs are represented by Wayne Cross and Randall Fox of Dewey Ballantine, (212) 259-8000
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