BY ROBERT LEDERMAN, PRESIDENT OF A.R.T.I.S.T. (ARTISTS' RESPONSE TO ILLEGAL STATE TACTICS)
COPYRIGHT ROBERT LEDERMAN 1/1/95 PHOTOS: ANN SANDHORST
ROBERT LEDERMAN, 255 13 Street, BROOKLYN, N.Y. 11215 -- (718) 369-2111
Introduction
The problem defined
The Solution
Specific Recommendations
Benefits of Artist Displays To New York
References to footnotes
Introduction
Artists have made use of the public sidewalks to display and sell their art from the beginning of New York City's history and they have always been appreciated by the vast majority of the public. Since the time of the administration of Mayor Fiorello LaGuardia in the 1930's, when the City of New York began a campaign to eliminate general vending, fine artists who displayed or sold their paintings, sculptures, limited edition prints or photographs on the street have sometimes found themselves at odds with the law.
Vending ordinances designed to restrict peddlers of general merchandise have at times been interpreted as applying to fine artists as well, despite their activities and creations being protected by the First Amendment. Each new administration and each precinct commander has handled the question of artist displays differently.
Over the years this has resulted in occasional arrests of artists and confiscations of their art but no clearly defined policy. The Department of Consumer Affairs, the agency responsible for issuing licenses for street vending, has at times held the position that displays of fine art are protected by the First Amendment, and that artists can therefore use public sidewalks without obtaining a license. It routinely tells artists that they do not require a license or that no licenses are available. Nevertheless, artists are sometimes arrested, ticketed and charged with AC 20-453 Unlicensed General Vending.
In response to pressures from landlord, loft and business groups such as the Soho Alliance and Fifth Avenue Association, the Police Department began a concerted effort to rid the streets of artists in the Fall of 1993. From then until the winter of 1994 over 150 arrests of artists and confiscations of their art were carried out by the N.Y.P.D. Police officials have repeatedly said, both on and off the public record, that artists would continue to be arrested and prosecuted.
Nevertheless, in the period from 1993-94, of the 150 or so arrests and/or confiscations of artists the D.A.'s office pointedly declined to prosecute a single case. These dismissals were not part of a plea bargaining arrangement, or based on sympathy for 'poor artists'. In fact, many of the artist-defendants specifically asked that they be prosecuted so that the court system could, in the context of a trial, examine the constitutionality of the arrests.
In the Fall of 1993, the artists formed a group, A.R.T.I.S.T. to deal with this situation. As president of this group, which represents the artists who show their own art on the street, and as an artist who has displayed his paintings on the street for the past 32 years, I have gained a detailed knowledge of this issue. Besides knowing and working with the artists themselves I've talked about this issue with thousands of New Yorkers, among them storeowners, landlords, residents and Directors of Business Improvement Districts in the areas in which artist displays are to be found. I've discussed and corresponded about this issue with police officials and police department attorneys, members of the City Council, District Attorneys, Mayor Giuliani and various knowledgeable members of his administration. I recognize that, as in most situations, all sides in this issue have legitimate points to raise, and legitimate grievances.
There is no political or judicial possibility that the present status of this issue can remain as it is. A number of the artists, represented by the firm of Dewey Ballantine and by Volunteer Lawyers for the Arts, have filed a Federal lawsuit which is based on constitutional protections for First Amendment activities. The City's own vending ordinance specifically exempts First Amendment activities from the requirement of a license. That original fine art is protected under the First Amendments of the State and Federal Constitutions is certain.
A new approach to this issue is needed. I believe that there is a middle ground where the interests of all of the parties involved can be satisfactorily addressed while the City of New York itself benefits. This proposal is meant to clarify the issue and show what can concretely be done to fairly, legally and constructively resolve whatever legitimate problems exist concerning artist displays in the streets of New York City.
The problem defined
Sidewalk space in New York is a valuable and limited resource. It is the stage where, to one extent or another, life's economic and social activities are played out. Businesses, residents and pedestrians all depend on access to the sidewalk and have different ideas as to how sidewalk space can or should best be used.
At the same time, sidewalks are the public forum of our city. They are the one place where rich and poor, property owner or homeless person, retail business person or first amendment speaker all stand on an equal footing as citizens. It is also where the First Amendment right to free speech and expression is most fully protected.
Supreme Court Justice Roberts has written, "Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public, and time out of mind, have been used for purposes of assembly, communicating thoughts between citizens and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, 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."
As a limited and valuable resource, sidewalks are often the focus of clashes between interest groups with conflicting or mutually exclusive points of view. Residents generally prefer as little activity on the sidewalk as possible while business people want as much activity of the right kind as possible.
Zoning regulations keep businesses and residences separate in some areas while in others they are thoroughly intermingled. Some residents want certain types of business, such as food markets, close at hand, but prefer to see anything that attracts crowds, such as large retail stores or bars and restaurants, kept out of their area. Businesses, on the other hand, find that the maxim, "location is everything" usually means success is found wherever the most consumers are.
New York's fast-paced pedestrians, want nothing to even momentarily slow them down when they are in a hurry, including other pedestrians. Yet, at other times those same fast-paced pedestrians may want to leisurely stroll, window shop or stand on the sidewalk and talk with their friends.
Businesses and residents are also often in conflict over tourism and its effects on crowding in the streets. Soho is a perfect example of this polarity of views. The Soho Partnership legitimately represents business interests in Soho. It encourages tourism and is supportive of whatever may attract tourists to the area, including sidewalk displays by artists. The Soho Alliance, which primarily represents real estate speculation in the area, is strongly opposed to tourism or anything that attracts tourists to the area, such as bars, hotels, restaurants, outdoor cafes and sidewalk displays by artists.
The city is caught between these conflicting positions. It wants to keep middle class and wealthy residents in New York for a variety of economic, political and social reasons. At the same time, the city wants to encourage all types of business and has become especially dependent on tourism as an economic base.
In an attempt to show a responsiveness to complaints from residents or business people about sidewalk conditions, the city's law enforcement agencies have targeted artists. This policy has been doubly misguided in that, besides grievously violating the First Amendment rights of the artists, most of the complaints regarding sidewalk conditions have actually been about general vendors, panhandlers and homeless people, rather than the negligibly small number of artists on the street.
This proposal will attempt to show how sidewalk displays by artists can be a contributing factor to an improved economic and social climate in this city. To accomplish this will require no extra expenditures from the city budget, no increase in police manpower, no new bureaucracies. This plan, if adopted, can help improve retail business in New York, including that of art galleries, which benefit from whatever attracts people with an interest in art to their area.
While artist displays undoubtably occupy some sidewalk space, they need not cause problems for pedestrians or residents if the guidelines in this proposal, which the members of A.R.T.I.S.T. agreed to follow, can be put into place. All that is needed is a willingness on the part of the great City of New York to view artist displays as a resource rather than a problem.
The solution
The absolute majority of New Yorkers have no aesthetic, social or moral objections to street displays by artists. When they do specifically complain about an artist it is invariably because the artist is using their property without their consent as a wall on which to show their art, or is blocking access to their store or apartment.
While most of the one hundred or so artists who regularly display on the streets of New York City have been careful to respect the property rights of other citizens, some have not. Part of the problem has been that there were no observable guidelines for artists to follow. Their activity on the street has been considered illegal regardless of where or how their display was set up. Constantly subject to arrest, confiscation and harassment, the artists have had no reasonable standard to comply with so as to avoid problems.
Given an opportunity to follow a reasonable and observable standard as to where and how they can display and sell their art, artists in general, and A.R.T.I.S.T. members in particular, will willingly comply. A reasonable standard is what the Supreme Court means by ruling that municipalities can enact reasonable time, place and manner restrictions on First Amendment activities.
These constitutionally acceptable restrictions must be based on compelling governmental interests rather than superficially or politically motivated ones. While New York does have a vending ordinance already in place that could be applied to artists, many of its rules are exceedingly restrictive and if applied to artists' displays would place severe and excessive limits on them. Excessively restrictive limits guarantee non-compliance by artists and mean that valuable police resources will continually be wasted dealing with these issues.
The restrictions in the existing ordinance were in large part designed to respond to complaints, many of which were superficial,rather than any compelling standard. Basically, wherever there was strong political pressure to get rid of vendors, it was written into the ordinance that vending was illegal in that area. The vending ordinance itself, due to its excessive restrictions, leaves vendors with no choice but to violate the rules or give up vending altogether.
To give an example of the extreme difficulty one would find in attempting to comply with the present ordinance, consider the following example. The ordinance restricts vending on any sidewalk that has less than 12 ft. of passable space and requires that displays, regardless of size, be 20 ft. from a doorway. This makes a display of even the smallest proportions or one that was held in one's hands, illegal on 85-90% of all sidewalks.
Few sidewalks have 12' of clear space and it is almost impossible to find a spot on the sidewalk that is 20' from any doorway. To add to the extreme difficulty, the few sidewalks on which one might find such a spot to set up in compliance with the rules, most of which are on the wider Avenues such as Fifth, Sixth, Park, Wall Street etc. are almost all completely restricted to vending regardless of space considerations. An objective observer would have to conclude upon examining the ordinance, that it was meant to prohibit vending altogether rather than merely regulate it.
What we need for artists is not more excessively restrictive and unobservable rules but reasonable guidelines that protect the legitimate interests of residents, businesses and pedestrians while leaving artists the opportunity to exercise their constitutional freedoms.
Rather than attempt here to reform the entire vending ordinance, let us take what is most reasonable and compelling in it as a basis for regulating artists and suggest some modifications. Some restrictions on size, placement, and safety of a display are reasonable. No one, especially artists, wants to see displays that obstruct the sidewalk and cause congestion or that cause dangerous conditions. Restricting artists from setting up at bus stops, in doorways, in front of fire hydrants or against walls (when they do not have the consent of property owners) are also entirely reasonable and necessary.
On the other hand, restricting artist displays from most streets and parks or to one or two "specially designated" areas is unnecessary and will be inviting artists to disregard the guidelines altogether. A Standard of Behavior for Artists Who Display on the Streets has been written, circulated among the artists, and received their approval. It contains the following points among others:
1.The sidewalk must remain unobstructed.
2.The rights of private property owners must be respected.
3. No one owns a spot.
4. Clean up after yourself.
5.Treat the police respectfully.
6.Spread out rather than cluster together in one location.
7. Be a contributor to the quality of life where you set up.
These are generalized guidelines rather than a highly detailed list of regulations. To them can be added some specific rules which, if designed to be reasonable rather than drastically restrictive, can and would be followed by the artists, with minimal police supervision.
SPECIFIC RECOMMENDATIONS
1. Where on the sidewalk should artists be allowed to set up?
This has been the outstanding problem between artists and the residents or businesses wherever they display their art. Both the vending ordinance and common sense dictate that private property cannot be used against the owner's wishes. This leaves, for artists that cannot obtain permission to use a wall, the area of the sidewalk beyond the property line. This is the exact arrangement for display within the existing vending ordinance itself.
The portion of the sidewalk along the curb is public property and is where other First Amendment protected activities, such as book vending, protests, religious displays, demonstrations, and licensed general vending, are permitted. Few people walk along the portion of sidewalk that adjoins the street. Parking meters, traffic signs, newspaper vending machines, mailboxes, fire hydrants, lightpoles, trees and other obstructions already make that part of the sidewalk virtually unusable for walking. Artists would be completely agreeable to not blocking crosswalks, access to fire hydrants, bus stops or subway entrances if allowed to used the curb section of the sidewalk for their displays.
2. How wide does a sidewalk need to be to make an art display without causing problems?
The answer is, wide enough. When a display itself is preventing pedestrians from walking on the sidewalk it should be moved elsewhere or adapted vertically so as to solve the problem. New York is a highly populated city with streets and sidewalks that follow no regular standard or pattern. Making one absolute standard to decide where a display is acceptable ignores the variety of sidewalk conditions from street to street and at different times on the same street.
Because art works are optimally displayed vertically to be seen to their best advantage, artists' displays need only be of a minimal width. Setting up a 36" or narrower display takes up less of the sidewalk width than the average person. The curbside section of the sidewalk not generally used for walking is 36" or more in width, depending on the street. Artists do not need, and often prefer not to use, a table to display their work.
Prohibiting artists from all or most streets will have no effect whatsoever on the conditions found on New York's sidewalks. These have always been and will continue to be crowded, and bustling with activity. Pedestrians find their progress slowed by baby carriages, truck deliveries, dog walkers, elderly people and couples holding hands far more often than by artists' displays.
3. What is an acceptable size and shape for artist displays?
The vending ordinance establishes one inflexible standard of dimension and shape for displays: 3' x 8' on a table. This works fairly well for displays of books or handicrafts because these items are of a small and standardized size and can be readily shown spread out on a table.
Works of art (with the exception of sculptures) are rarely displayed on a table. They are ideally shown vertically on an upright or slanted flat surface. The base of this display need be no more than 36" wide (which exactly complies with the vending ordinance) and can be, depending on the ingenuity of the design, as little as a few inches in thickness.
As for the length of a display, artists show a wide variety of works. Most tend to display pieces that could readily fit within the standard 3' wide x 8' long display. Some, who show larger pieces, display one or two and have others leaning against each other in a stack. Where a wall is being made available by a property owner, a larger display is certainly feasible. Here are a few examples of artist displays now in use on the street that comply with the reasonable requirements of the existing ordinance.
*******************(PHOTOS NOT HERE YET)****************
The yearly art festival in the West Village's Washington Square Park area is a tangible example of how much larger displays than those I've indicated can readily be accommodated on highly populated streets, without causing problems. Hundreds of artists display at the festival, tens of thousands of people come to view the art, and the entire event is supervised by a minimal number of police, without incident.
All of the displays are vertical and free standing along the curb. No stores or residences are blocked and most retail businesses enjoy a noticeable increase in sales, including the few galleries in the area.
4. How many artists should be allowed to display on one block?
Part of the problem has been that too many artists set up on the same sidewalk. This has often been due to the artists clustering together for protection from the police. In a new climate of acceptance for artist displays, such clustering would be unnecessary.
Artists also cluster together to be near museums or areas, such as Soho, that are identified with art. By making displays by artists legal and encouraging artists to disperse throughout the city rather than being overly concentrated in two or three areas, this problem of overcrowding can to a great extent be resolved.
Artist displays, unlike displays of commercially available items, really do add something of a cultural nature to streets and neighborhoods. Allowing and encouraging artists to set up in many different parts of the city will have a beneficial effect for New York's citizens and visitors.
Two artists allowed on every block would be a constitutionally acceptable and workable possibility. Opening the paths of all public parks to artist displays would immeasurably add to the safety of those parks and encourage greater use by members of the public who are now often fearful of being victimized in the usually semi-deserted park environment. Central Park alone could easily accommodate not only all the artists who now show on the street, but every artist now living in New York City, without inconveniencing anyone.
Another possible solution is to unobtrusively mark with a symbol, the spots along each sidewalk where conditions are right for artists to be allowed to show their work. A number of cities in the United States, among them San Francisco, as well as other cities abroad, the most famous being Paris, have successfully gone this route. It makes it clear to all whether or not an artist is set up in a legally sanctioned spot.
One can envision a New York where artists from various backgrounds would have the opportunity to display their art in the very neighborhoods where it will be most appreciated. Imagine young people in our blighted inner city areas competing to create, show and sell the best art rather than competing for drug selling spots or gang turf. The destructive and annoying phenomena of graffiti is due in large part to artistic talent having no other socially redeeming or viable outlet. It is not far-fetched to think that legalizing and even encouraging art displays could, without spending a single dollar, substantially aid in mitigating problems that have proven intractable to police departments and government agencies.
5. In the context of displaying or selling on New York's streets, who is to be considered an artist and what is included as art, rather than continuing to be viewed as general vending merchandise?
The essence of the constitutional aspect of this issue is that art is a form of speech and that the government cannot restrict artists from displaying or selling their own art without violating their First Amendment rights. Other categories of vendors generally do not claim to be performing their activities primarily as a way to express opinions, knowledge or culture to their fellow citizens.
Within the New York State Code's section on Arts and Cultural Affairs exist definitions of "artist", "limited edition", "painting", "print" and "sculpture" that we find adequate for the purpose of defining, in regard to sidewalk displays, what is art and who, as its creator, is an artist. It reads: article 11, pg. 26...
1. "Artist" means the creator of a work of fine art or, in the case of multiples, the person who conceived or created the image which is contained in or which constitutes the master from which the individual print was made.
As a group, A.R.T.I.S.T. makes no attempt to judge the artistic merits of other artists' works. As long as they made it themselves and it fits the broad definition in the state code, we hold that it should be permitted. The Supreme court considers "Fine Art" to be that which has as its main purpose the communication of an idea or ideas rather than a decorative or functional purpose. It is in this capacity of communication that art is "protected speech" and must not be unreasonably restricted.
6. Should artists be allowed to sell their work or just display it? Does the First Amendment protect the selling of art?
This question is at the heart of the city's response to the charges in the Federal lawsuit filed on behalf of the artists who show and sell their art on the street. Let us put aside the question of whether art is protected by the First Amendment, which no one can seriously doubt in the light of decisions that have established movies, hairstyles, topless dancing, flag burning and clothing preferences as forms of speech or expression. Art is, if anything, expression.
We need look no further than the vending ordinance itself (clearly a document that is designed to limit freedom rather than expand upon it) which permits the selling of books, magazines, baseball cards and other similar items, without the requirement of a license. Newspapers are sold on every corner by news vendors and from automated sidewalk boxes, without a table, without a license and without any requirement to follow the vending ordinance at all. Muslims sell jewelry, incense, candles and other items throughout the city without a license. This permission is entirely due to these items being considered protected expression under the First Amendment.
The theory behind this is that without the opportunity to sell these materials they could not afford to be produced or distributed. Without being able to be distributed, their creators would have no freedom of speech or expression. Prohibiting their sale would be a prior restraint on their creation and distribution, and therefore an obvious violation of the First Amendment.
The only justification the government can have to put a prior restraint on speech is where a compelling governmental interest can be proven. The possibility that an artist selling a painting on the street might be in competition with a gallery or other store, is hardly an example of a compelling governmental interest.
As to the idea that in the interests of public safety, the city has a right to prohibit artist displays, the city presently allows (by virtue of the vending ordinance) an unlimited number of book vendors to sell books on the street; further allows 853 non-veteran and an unlimited number of veteran vendors to sell non-First Amendment protected materials on the street; allows hundreds of unlicensed Muslim vendors to sell anywhere, and virtually anything, they like; and allows an unlimited number (some operators hold as many as 1,000 licenses!) of food push-carts. No reasonable argument can possibly be made that all of those individuals present no justifiable reason to be prohibited but that a few artists' displays do. This clearly presents a violation of the Fourteenth Amendment (equal protection) as well as the First Amendment (freedom of speech and expression).
Clearly, the city has no right to prevent artists from displaying their work, and no practical benefit whatsoever is achieved by allowing them to display, but not sell, the same works.
Benefits of artist displays to New York City
Besides the obvious benefits to artists, sidewalk displays of art can bring many valuable benefits to the city. New York is known throughout the world as an important cultural center. Both so-called high culture (Operas, museums, the Broadway stage) and low culture (comic books, rap music, punk, fashions etc.) are associated with New York. Since the 1950's, New York has been uniquely associated with artists. What could be more natural than for the city to allow, and even encourage, sidewalk displays by artists?
One urgent priority of this and most other large cities is to encourage its citizens to rely less on automobiles and to take public transportation or walk. The city has drastically reduced parking and created a whole bureaucracy, the Parking Violations Bureau and its thousands of street level enforcers, to make bringing one's car into Manhattan as unattractive as possible. Nevertheless, most people who have access to a car, persist in coming to the city in that car, if at all. The reason for them doing so is that city streets are perceived as dangerous places where the less time spent exposed to the risks inherent in walking, the better.
An urban environment in which two or three different artists could be found showing original art on every block, would encourage many more middle-class people to come into the city and walk around the streets rather than depending on their cars or on taxis. This could dramatically increase business in every type of store, including galleries, and help to restore confidence in the city's business community. It would also help bring about an increase in jobs in those businesses.
Artist displays, by encouraging pedestrianism, increase the perceived as well as actual safety of New York's streets. Criminal activity flourishes where crimes will not be witnessed and victims are unable to call on anyone for help. Many artists and vendors have prevented crimes due to their alertness to street situations as well as helping victims of crimes that had already been committed. The majority of people would feel safer walking down a street that had an artist's display as compared to one that was empty.
Artists also provide a valuable service to the millions of visitors that come to New York each year. Artists often speak several languages and are constantly asked directions by foreign visitors that find police unable, or educationally unprepared, to help them. This is no small contribution to provide free of charge to a city increasingly dependent on tourism and out-of-town consumers.
The failure of our school system to engage the minds or aspirations of young people is a subject dealt with almost daily in our newspapers and television news shows. Billions of dollars is spent, and, for the most part wasted, attempting to engage their minds with something other than drugs, sex and violence.
Art is a civilizing force in a society in that it increases sensitivity to oneself, one's surroundings and to other people. Many of New York's children grow up having never visited a single museum or art gallery, despite living in a city filled with museums and galleries. Street displays by artists bring culture to the people without any expense to the government. Young people are often the most excited and enthusiastic viewers of street displays by artists. Such displays could become valuable tools in opening the minds of these young people to positive and constructive viewpoints to which they might never otherwise be exposed.
That the government gives millions of tax dollars in grants to artists and cultural institutions in order to promote culture, while at the same time spending millions of dollars to arrest artists and keep them from showing art on the street, is illogical, paradoxical and counterproductive.
It is time to recognize that street displays by artists are a valuable asset to New York. Like any other resource, intelligent management is required to get the most benefit. If only the ideas recommended in this proposal are allowed to be put into practice, whatever problems that were caused by artist displays in the past can be corrected and a new era of fair play and constructive cooperation between artists and the City of New York can begin. There is nothing necessary to begin this process that is not already at hand. All that is required is the willingness to try.
(Back to OPENAIR MARKET NET) -- The World Wide Guide to Outdoor Markets