Summary of Federal lawsuit by New York City's street artists

by A.R.T.I.S.T. (received 1/31/96)


provided through OPENAIR-MARKET NET


For the past three years New York City has engaged in a policy of

arresting artists for selling their own original art on the street without a

license. Once arrested their art is confiscated and forfeited, usually

regardless of their case's outcome in court. After more than 200 such

arrests, none of which were brought to trial in Criminal Court, artists

filed a Federal suit [Lederman v. City of New York 94 Civ. 7216

(MGC)] charging the City with violating their First and Fourteenth

Amendment rights.

The City claims that arresting artists protects the public's health, safety

and welfare by preventing "congestion". By City Council decree only 853

vending licenses are allowed to be in effect at any given time.

The City admits in its own brief that artists cannot obtain a vending

license. The previous Commissioner of Consumer Affairs, Richard

Schrader, submitted an affidavit stating that it would take from three to

five years to apply for a vending license; that in some years not one was

issued; and that he knew of no artist who had succeeded in obtaining one.

According to the Department of Consumer Affairs, the present waiting

list of 5,000 applicants to apply for a license is closed. New applicants

are advised that they should check back, "every few years". Even an

application form is presently unavailable. For many years the

Department, both verbally and in writing, told artists they were

"...protected by the First Amendment and didn't need a license to sell

their own art".

The vending ordinance has exempted books, literature, baseball cards and

other similar written matter from the licensing requirement since 1982,

based on the First Amendment freedom of speech and the press. The City

allows an unlimited number of unlicensed vendors of written matter and

a similarly unlimited number of licensed veteran vendors selling anything

they like, including paintings. Veterans can obtain a vending license

within one to three months.

Plaintiffs claim that the City has unconstitutionally prohibited their visual

speech and, without any rational basis, discriminated against visual

expression in favor of written expression. The City offers no rational

basis for this discrimination, other than to reaffirm that its ban on street

art is in the interests of preventing congestion.

Plaintiffs indicate over fifty years of Supreme Court, Appellate and State

Court rulings affirming visual art's First Amendment protection, and

similar precedents affirming that City sidewalks are a legal forum for

First Amendment protected activities. Plaintiffs further claim that the

City's total ban on art violates constitutional requirements for strict or

intermediate scrutiny of restrictions on speech. Federal standards require

that, to withstand strict scrutiny, a restriction must be the least

restrictive means of accomplishing a compelling government interest. Under

intermediate scrutiny a regulation must be designed so as to further a

significant government interest while not burdening more speech than is

necessary and leaving ample alternative channels of communication.

According to plaintiffs, all that would be necessary to protect the

government's stated interest in preventing congestion would be to require

artists to follow the same time, place and manner of display rules that

book and other vendors must obey.

On October 24, 1995 Federal Judge Miriam Cedarbaum denied plaintiffs

request for injunctive relief (a temporary ban on further artist arrests

while the case is decided) based on her determination that, "...written

matter is the heartland of the First Amendment", and that, "plaintiffs' art

does not carry either words or the particularized social and political

messages upon which the First Amendment places special value". The

City immediately renewed its policy of arrests based on the judge's

ruling.

An appeal of the ruling was filed on 1/22/96. Joining the case by filing

amicus briefs in support of plaintiffs position were The Museum of

Modern Art, The Whitney Museum The A.C.L.U. the N.Y.C.L.U.,

Volunteer Lawyers for the Arts, The College Arts Association, The

N.Y.C. Arts Coalition, The N.Y. Foundation for the Arts, SoHo art

dealer Ron Feldman, artists Clae Oldenburg, Coosje van Bruggen, Chuck

Close, Jenny Holzer, Hans Hacke, David Hammons, and art critics Irving

Sandler and Simon Schama.


For more information contact: Robert Lederman, president of A.R.T.I.S.T. (Artists' Response To Illegal State Tactics) (718) 369-2111.

E-mail:ARTISTpres@aol.com or visit the A.R.T.I.S.T. web sire at: http://homepage.interaccess.com/~mar/nyc.html

Plaintiffs are represented by Wayne Cross and Randall Fox of Dewey Ballantine, (212) 259-8000


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