No First Amendment Protection For Art Says Judge

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


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