I feel the time is ripe to expose some of what's really involved in this issue. As a new year is about to begin, we hope some brave reporter, editor or news assignment desk person will consider the following:
-Robert Lederman
Provided through OPENAIR-MARKET NET
1. The N.Y.P.D. is renewing a crackdown on artists displaying original art on
New York City streets based on deliberate misinformation issued by the N.Y.C.
Corporation Counsel's office. The police have been told that artists lost
their Federal case, despite even the first level of the proceedings being as
yet unfinished.
2. The Corporation Counsel appears extremely confident, even certain that the
case will be won, despite every constitutional expert in the U.S. who has
examined the legal briefs believing the City is certain to lose, and that it
has grievously and deliberately violated artists' First, Fifth and Fourteenth
Amendment rights. Does the Corporation Counsel know something the rest of
us don't, i.e. that the case is "fixed" and that the plaintiffs will lose regardless
of the merits or the evidence?
3. Some of New York City's most powerful people appear to involved in
insuring that a handful of "street artists" don't win this basic First
Amendment case. The head of the Fifth Avenue B.I.D., the head of the Fifth
Avenue Association and the Chair of the City Council's Budget Committee
(Kathryn Freed) personally attended hearings
in Federal Court, have issued public statements about the case and are
actively working to defeat it both in front of and behind the scenes. Peter
Vallone was personally involved in denying the licensing exemption granted
book vendors in 1988 to artists. Mayor Giuliani has personally ordered a
renewal of the arrests. Not one City Council Person has had the courage to
publicly come to the aid of these artists in a city world famous for art
promotion, culture and free speech.
4. Despite over 200 artists having been arrested since 1993, not one case has
resulted in a criminal conviction. In fact, not one artist case brought in
Criminal Court has ever come to trial, not due to plea bargaining, but
because the D.A.'s office deliberately defaulted on prosecuting any of the
cases or insisted on dismissing them. A number of A.D.A's have privately
admitted that the City's cases have no merit, and that if they were brought
to trial, the vending ordinance under which the artists are arrested would
be found unconstitutional.
5. Reporters attempting to cover this story have been told by N.Y.P.D.
officials that their access to the police department would be terminated if
they continued to cover the story. Numerous stories that were about to be
published on this issue were arbitrarily canceled after pressure from City
Council Person Freed or the N.Y.P.D.
6. Police have confiscated literature, protest signs and photos of artist
arrests from members of A.R.T.I.S.T. in blatant violation of even the
N.Y.P.D.'s limited concept of First Amendment freedom. A.R.T.I.S.T.
president, Robert Lederman was arrested on at least one occasion, and
threatened with arrest numerous times, for peacefully
distributing literature exposing the City's illegal actions in this issue.
Police informed Lederman they had been sent by Council Member Freed to arrest
him.
7. Knowledgeable observers, including individuals who have held high
positions in New York City Government, believe that an organized effort is in
place to suppress information about this issue and guarantee that the
plaintiffs in the Federal case lose.
8. Numerous attorneys, after originally being enthusiastic about taking up
this cause, suddenly withdrew due to "conflicts of interest" or fear that
their careers would be damaged if they helped the artists. Not one museum or
arts institution in New York City has publicly supported the artists, despite
being requested to do so for over three years. Are they afraid of losing City
funding or large donations from New York's elite?
9. In the past six months, two excellent and highly qualified Captains were
re-assigned out of the First Precinct because they failed to crack down hard
enough on artists displaying fine art on SoHo's streets. City Council Person
Freed has threatened further transfers if the artist situation is not cleared
up.
10. A federal judge, who is alleged to have once worked for the Museum of
Modern Art, rules that visual art is not protected by the First Amendment,
contradicting 50 years of Supreme, Appellate and State Court rulings,
including:
Piarowski v. Illinois Community College, 759 F.2d 625, 628 (7th Cir.) -"The
freedom of speech and of the press protected by the First Amendment has been
interpreted to embrace purely artistic as well as political expression.".
cert. denied, 474 U.S. 1007 (1985).
Miller v. California, 413 U.S. 15, 34 (1974) -"The First Amendment protects
works which, taken as a whole, have serious literary, artistic, political or scientific value..."
Serra v. United States Gen. Servs. Admin., 847 F.2d 1045, 1048 (2d
Cir.1988)"...artistic expression constitutes speech for First Amendment purposes...".
414 Theater Corp. v. Murphy, 499 F.2d 1155 (2d Cir. 1974), [A peep show case,
involving visual expression.] "The forced discontinuance of a first amendment right
pending a protracted license determination is itself a prior restraint, and involves
irreparable injury to the public's as well as the appellee's first amendment rights."
Joseph Burstyn, Inc, v. Wilson 343 U.S. 495 (1952)
"It cannot be doubted that motion pictures are a significant medium for the
communication of ideas. They may affect public attitudes and behavior in a
variety of ways, ranging from direct espousal of political or social doctrine to the
subtle shaping of thought which characterizes all artistic expression."
People v. Bery, N.Y.L.J., May 20, 1994, at 22. "The licensing requirement is
inapplicable to this case based on the First Amendment rights of the defendant..." [a fine artist].
People v. Milbry, 530 N.Y.S.2d 928, 929 (N.Y. Crim. Ct. 1988) "Pictorial
artwork, as a form of self-expression, is certainly covered by the guarantee of
freedom of speech contained in both Federal and New York State
Constitutions."
People v. Lessin Rodriguez, 94NO58171 N.Y.Crim.Ct. 8/8/94 [a case of an
unlicensed general vending charge against fine artist] "...because it's not a
crime...it is dismissed. The First Amendment protects it."
Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425
U.S. 748, 761 (1976) "Speech is protected even though it is a form that is sold
for profit, and even though it may involve a solicitation to purchase
or otherwise pay or contribute money."
Loper v. New York City Police Dep't, 999 F.2d 699, 704 (2d Cir. 1993), The
sidewalks of New York City constitute a public forum because they "...fall into
the category of public property traditionally held open to the public for
expressive activity."
Hague v. C.I.O., 307 U.S. 496 (1939)
"Whenever the title of streets and parks may rest, they have immemorially
been held in trust for the use of the public...Such use of the streets and public
places has, from ancient times, been a part of the privileges, immunites,
rights and liberties of citizens. The privilege of a citizen of the United
States to use the streets and parks for communication...must not, in the guise
of regulation, be abridged or denied."
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Here is an updated source list for authoritative quotes and expert information on the issue of artists being arrested for displaying original fine art on N.Y.C. sidewalks.
A.R.T.I.S.T. has still photos and videos of artist arrests, and extensive information resources available for writing this story. Contact (718) 369-2111 or e-mail <ARTISTpres@aol.com> or go to the A.R.T.I.S.T. web site at: http://openair.org/alerts/artist/nyc.html
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