Why New York City Arrests Artists

© 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public space have been replaced by a cozy partnership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.


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