Is a picture worth a thousand words? Not according to United States District Court Judge Miriam Cedarbaum. The judge handed down a ruling on 10/24/95 denying plaintiffs from A.R.T.I.S.T. (Artists' Response To Illegal State Tactics) a preliminary injunction. [94 Civ. 7216 (MGC)]. The injunction was intended to protect artists who've been arrested and had their original fine art confiscated or destroyed by the police while displaying it on New York City streets. The ruling claims New York City is fully justified in prohibiting artists' displays in the interests of, "...preventing congestion", because artists are not protected by the First Amendment, regardless of there being, "...some expressive content in works of fine art." Since 1993, over 200 artists have been handcuffed, arrested and have lost their original paintings, prints, sculptures and photographs to the N.Y.P.D. The City sells the confiscated art at a monthly police department auction. Any unsold art is destroyed.
The ruling finds the City's vending license scheme constitutional as applied to artists, despite the City admitting in hearings and in it's legal brief that it has no licenses for artists who want to display or sell their art. For many years the Department of Consumer Affairs, which issues all vending licenses in New York City, told artists that they were "...protected by the First Amendment and didn't need a license to sell their own art".
According to this new ruling, "Plaintiffs' art does not carry either words or the particularized social and political messages upon which the First Amendment places special value". This directly contradicts numerous Supreme and Appellate 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 1st. Amendment protects works which, taken as a whole, have serious literary, artistic, political or scientific value..." Hurley v.Irish-American Gay and Lesbian Bisexual Group, No. 94-749, 1995 WL 360192 (S. Ct. June 19, 1995) -"...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". City of Ladue v. Gilleo, 114 S. Ct. 2038 (1994), -"Although prohibitions foreclosing entire media may be completely free of content or viewpoint discrimination, the danger they pose to the freedom of speech is readily apparent- by eliminating a common means of speaking, such measures can suppress too much speech". Traditionally, the works of fine artists are thought to contain implicit political and social meaning, and to be a medium for communicating the artists' ideas, beliefs and opinions.
Though the judge never viewed any of the plaintiffs' paintings, prints, sculptures or photographs, the 17 page ruling repeatedly mentions a lack of political content in the works in order to explain why the art is not protected expression. The judge quotes the following cases in support of her position that non-political art is not protected by the First Amendment: .People v. Krebs, 282 N.Y.S. 2d 996 (N.Y. City Crim. Ct. 1967), East Hartford Educ. Ass'n. v. Board of Educ. of East Hartford, 562 F. 2d 838, 858 (2d Cir. 1977), Close v. Lederle, 424 F. 2d 988-90 (1st. Cir.). and S.F. Street Artists Guild v. Scott, 112 Cal. Rptr.502, 505 (Cal. Ct. App. 1974).
The ruling also denied that the City violated artists' Fourteenth Amendment right to equal protection under the law, despite the vending ordinance exempting an unlimited number of vendors of written or printed matter from needing a license. "Such written matter is the heartland of the First Amendment", writes Judge Cedarbaum. "Because art is farther from the core than the written word, the City's decision to exempt sellers of written matter cannot be seen as irrational". Based on this new ruling, sidewalk vendors of art books, used magazines, comic books and baseball cards are expressing a First Amendment right, while artists selling non-political paintings created to express their own ideas, are not. Legal, cultural and arts organizations are being asked to join in the case by filing amicus briefs for an appeal challenging the ruling.
"This decision threatens the constitutional rights of artists, whether they show on the street, in a gallery or on the Internet", said a plaintiff in the case and president of A.R.T.I.S.T., Robert Lederman. "Fine art is a universal form of speech, information transfer and expression pre-dating any written or spoken languages". Lederman has been arrested 10 times for displaying his own paintings and prints on the street.
The plaintiffs, represented by Dewey Ballantine and Volunteer Lawyers For The Arts, met this week and decided to immediately appeal the decision. In the meantime they will continue to sell their art on the street. "This ruling makes me want to go out and show my art more than ever", said artist Jodi Bogus, another plaintiff in the case. For more information contact: Randall Fox (Dewey Ballantine) (212) 259-8000 / Dan Mayer (Exec. Dir.Volunteer Lawyers For The Arts) (212) 319-2787 / Robert Lederman (718) 369-2111 255 13 Street Brooklyn, N.Y. 11215 E-mail: [ARTISTpres@aol.com] / Photos/videos of artist arrests and demonstrations are available.