© Robert Lederman1996
Provided through OPENAIR-MARKET NET
New York City is in the midst of a social transformation
in which the City's "image" has become the deciding factor
in all governmental decisions. So-called "quality of life"
is the new goal of City Hall's policies.
Unfortunately, it's not the average person's life quality the
present administration is trying to improve. Concerns
about individual rights, small scale free enterprise and
public space have been replaced by a cozy partnership
between corporate clients and City government.
Corporations and real estate interests are now viewed as
the actual proprietors of our public sidewalks, parks and
streets. These interests see sidewalk displays of paintings,
and street culture of any kind, as an ugly blemish damaging
the exclusive appeal and market value of their properties
and businesses.
Real estate associations and corporations desiring to gain
absolute control over public spaces have formed their own
independent governments or B.I.D.'s (Business
Improvement Districts). These organizations act as an
unelected and unaccountable shadow government running
key areas of the City. They are authorized to collect
special taxes ($42 million last year), have their own police
(often paid less than the minimum wage) and are attempting
to set up their own court system. The Fifth Avenue and
Times Square B.I.D.s, which dominate the entire B.I.D.
scheme, financed and built their own Community Court on
54th Street to handle quality of life crimes committed in
their vicinity more "efficiently". B.I.D.s have been
accused of "hiring goon squads" [see 1995 City Council
Investigation on B.I.D.s] to force homeless people off the
streets. Distinctions between business, police, and the
court system blur as they become one continuous
enterprise.
Sidewalk art displays have been described by B.I.D.
directors as magnets for prostitution, pickpockets and
crime. Artists are demonized as "parasites" in order to
justify eliminating them from the streets. Previous to this
new policy, artists' displays were seen as non-threatening
or as a cultural asset. New York City actually advertised
the presence of street artists in travel magazines. The
police were instructed not to arrest artists and that a visual
artist selling his or her own signed art didn't require a
license, based on the First Amendment.
In 1993, when the City's B.I.D.s, led by the Fifth Avenue
Association, attempted to eliminate all sidewalk vending,
artist displays were reclassified as vending and a license
became a requirement. Since the City Council had
previously frozen the total number of general vending
licenses at the 853 then in effect, a license was, in the
City's own words, "impossible for artists to obtain".
Artists throughout the City were then handcuffed and
arrested and had their art confiscated for the "crime" of
not having a license. There is now a closed waiting list of
over 5,000 applicants for a vending license; in some years,
not one license has been issued.
Fearing that an independent-minded judge might find such
an unreasonable licensing requirement for First
Amendment protected expression unconstitutional, the City
has meticulously avoided prosecuting a single artists' case
in Criminal Court. None of the more than 300 artists
arrested since 1993 have been found guilty of a crime.
While not found guilty, artists rarely recover their
confiscated paintings, which the City illegally sells at a
monthly Police Department auction or destroys.
When artists brought a Federal lawsuit against the City,
representatives of the B.I.D.s appeared in court and
convinced a judge to rule, contradicting 50 years of
Supreme, Appellate and State Court rulings, that visual art
is not protected by the First Amendment. That decision is
being appealed.
The B.I.D.s view sidewalk art displays as a key legal
obstacle to this overall "cleansing" process. Successfully
eliminating constitutionally protected activities will set the
stage to eliminate or substantially restrict all street
culture, public space and non-corporate expression. In
arguments before the 2nd Circuit Appeals Court the City
claimed that, "protection of business interests" was a
prime reason for preventing artists from showing art on the
street. In fact, that is their only "reason". Genuine First
Amendment freedom is seen by many business interests and
landlords as a threat. If the average person is allowed to
use traditionally public spaces to communicate, advertise
or sell their creations, it threatens the business
communities monopoly on these basic activities. While
politicians and corporations pay lip service to the ideas of
free enterprise, freedom of speech and equal opportunity,
they are trying to deny these same rights to the public.
City officials have made a concerted effort to suppress
media coverage about these arrests. Reporters researching
this issue have been told that their access to Police
Department sources would be cut off if they continued to
cover the artists' story. Protest signs and petitions have
been confiscated from artist activists, and artists have been
arrested for handing out literature about the arrests.
Can New York City violate the constitutional rights of an
entire class of individuals and prohibit an entire medium of
communication on public property, simply because it
pleases big business? While the number of individuals
directly affected by these arrests is small (there are fewer
than 200 artists selling their own paintings, photographs or
limited-edition prints on New York's streets) the social
significance is large.
The outcome of this issue will affect legal policies in U.S.
cities for years to come. At stake is free expression and the
right of the public as well as artists, to use city streets for
communication. The following court cases directly relate
to this issue:
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).
Serra v. United States Gen. Servs. Admin., 847 F.2d 1045,
1048 (2d Cir.1988)"...artistic expression constitutes
speech for First Amendment purposes...".
Texas v. Johnson, 491 U.S. 397, 404 (1989)"We have long
recognized that its protection [the First Amendment's] does
not end at the spoken or written word."
414 Theater Corp. v. Murphy, 499 F.2d 1155 (2d Cir.
1974), [A case that cooresponds to the licensing issue in
this case.] "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."
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 a fine artist] "...because it's not a crime...it is
dismissed. The First Amendment protects it."
People v. Krebs 282 N.Y.S. 2d. 996
"Purpose and the thrust of the peddler license
ordinance...was not intended to strike down First
Amendment rights or subject proper exercise of free speech
to municipal regulations or police dictation."
["Speech" need not be in the form of words to be protected
nor does it need to be "political" or even have a specific
message.]
Hurley v.Irish-American Gay and Lesbian Bisexual Group,
No. 94-749, 1995 WL 360192 (S. Ct. June 19, 1995) The
Constitution looks beyond written or spoken words as
mediums of expression...as some of these examples show,
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 Pollack, music of Arnold Schonberg or
Jabberwocky verse of Lewis Carroll".
[Selling the tangible manifestations of speech in no way
invalidates its First Amendment protection.]
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."
United States v. National Treasury Employees Union No.
93-1170, 1995 WL 68442 (S. Ct. February 22, 1995) A ban
on recieving honoraria, "...unquestionably imposes a
significant burden on expressive activity...The honoraria
ban imposes the kind of burden that abridges speech under
the First Amendment."
Joseph Burstyn, Inc, v. Wilson 343 U.S. 495 (1952)
"That books, newspapers and magazines are published and
sold for profit does not prevent them from being a form of
expression whose liberty is safeguarded by the First
Amendment."
[Public streets are an appropriate forum for First
Amendment protected activities and have consistently been
found to be the traditional locale of free expression.]
See: Burson, 112 S. Ct. at 1850 ("Quintessential public
forums" are "parks, streets, and sidewalks."); Frisby v.
Schultz, 487 U.S. 474, 481 (1988) (residential street is a
public forum); United States v. Grace, 461 U.S. 171, 176
(1983) (public sidewalks forming perimeter of the Supreme
Court grounds are public forum for First Amendment
purposes).
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."
Therefore, one must conclude that whatever exemptions,
privileges or special considerations given other First
Amendment protected materials being displayed, sold or
given away on New York City streets must be similarly
afforded artists and their fine art. It can hardly be
constitutional or rational to arbitrarily deny First
Amendment protection to one expressive medium (visual
fine art), while granting it to another medium (books,
baseball cards, used magazines and postcards, i.e. written
art is exempted from the licensing requirement).
We recently discovered that in 1982, the original wording
of the licensing exemption for book vendors was clearly
and conspicuously attributed to the First Amendment and
free speech. In subsequent editions of the law, the City
Council's lawyers removed all mention of free speech as a
way of denying artists and other protected individuals the
same exemption. Here's the original wording which is only
to be found in 1982 editions:
Local Laws of the City of New York For The Year 1982.
#33 section 1: Legislative declaration. The council hereby
finds and declares that it is consistent with the principles
of free speech and freedom of the press to eliminate as
many restrictions on the vending of written matter as is
consistent with the public health, safety and welfare.
A note on the artists' Federal suit.....
Joining the artists in their Federal suit [Lederman v. City
of New York 94 civ. 7216 (MGC) by filing amicus briefs
were The Museum of Modern Art, The Whitney Museum,
The ACLU, Volunteer Lawyers for the Arts, The College
Arts Association, the N.Y.C. Arts Coalition, The N.Y.
Foundation for the Arts, art dealer Ronald Feldman, art
historians Irving Sandler and Simon Schama, and artists
Claes Oldenburg, Chuck Close, Jenny Holzer, Hans
Haacke and David Hammons.
David Ross, the Director of the Whitney Museum of
American Art, stated in connection with this lawsuit, "We
stand firmly behind the idea that art is equal to other forms
of expression and is as protected as speech". [Christian
Science Monitor 2/14/96, pg. 11] {also see Art In
America, March 96 pg 128, "New Allies for Street
Artists"; N.Y. Times Metro sec. 1/24/96 pg.B1 "Street
Art: Free Speech or Just Stuff?"]
The real estate and business organizations forcing the City
to arrest artists filed their own brief in Federal Court co-
signed by The Fifth Avenue Association, The SoHo
Alliance, The Alliance for Downtown New York, The
Grand Central Partnership, The 34th Street Partnership and
the Madison Avenue Business Improvement District. The
30 page brief compares public displays of fine art to,
"...graffiti, litter and petty street crime..." It goes on to
state, "The sale of artwork does not involve communication
of thoughts or ideas" and warns of, "the dangers...of
allowing visual art full First Amendment protection". It
sums up its position by claiming that, "An artists' freedom
of expression is not compromised by regulating his ability
to merchandise his artwork", and, "..the sale of paintings
and other artwork does not reach this high level of
expression (guaranteeing First Amendment protection)..."
Robert Lederman is president of A.R.T.I.S.T. (Artists'
Response To Illegal State Tactics) For information, to
make a donation or to join A.R.T.I.S.T.
call: (718) 369-2111 e-mail ARTISTpres@aol.com
or visit our web site at:
http://www.openair.org/alerts/artist/nyc.html
Photos of arrests, art confiscations and demonstrations are
available for publication. We welcome all artists to join us
in the street and to help protect First Amendment rights.