FOR IMMEDIATE RELEASE (October 14, 1996):
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(Cite as: 1996 WL 580938 (2nd Cir.(N.Y.))Nos.1620, 1621, 1782, Docket 95-9089(L), 95-9131, 96-7137. United States Court of Appeals, Second Circuit. Argued April 26, 1996. Decided Oct. 10, 1996.Before VAN GRAAFEILAND and MAHONEY, Circuit Judges, and CARTER, District Judge. [FN1] Robert Lederman et al. v. City of New York (94 Civ. 7216)
The following are selected quotes from the street artist decision......
The City apparently looks upon visual art as mere "merchandise" lacking in communicative concepts or ideas. Both the court and the City demonstrate an unduly restricted view of the First Amendment and of visual art itself. Such myopic vision not only overlooks case law central to First Amendment jurisprudence but fundamentally misperceives the essence of visual communication and artistic expression. Visual art is as wide ranging in its depiction of ideas, concepts and emotions as any book, treatise, pamphlet or other writing, and is similarly entitled to full First Amendment protection.[FN3] Indeed, written language is far more constricting because of its many variants--English, Japanese, Arabic, Hebrew, Wolof, [FN4] Guarani, [FN5] etc.--among and within each group and because some within each language group are illiterate and cannot comprehend their own written language. The ideas and concepts embodied in visual art have the power to transcend these language limitations and reach beyond a particular language group to both the educated and the illiterate. As the Supreme Court has reminded us, visual images are "a primitive but effective way of communicating ideas ... a short cut from mind to mind."
The City further argues that appellants are free to display their artwork publicly without a license, they simply cannot sell it. These arguments must fail. The sale of protected materials is also protected. See Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 756 n. 5 & 768, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988). "It is well settled that a speaker's rights are not lost merely because compensation is received; a speaker is no less a speaker because he or she is paid to speak."
Furthermore, the street marketing is in fact a part of the message of appellants' art. As they note in their submissions to the court, they believe that art should be available to the public. Anyone, not just the wealthy, should be able to view it and to buy it. Artists are part of the "real" world; they struggle to make a living and interact with their environments. The sale of art in public places conveys these messages. The district court seems to have equated the visual expression involved in these cases with the crafts of the jeweler, the potter and the silversmith who seek to sell their work. While these objects may at times have expressive content, paintings, photographs, prints and sculptures, such as those appellants seek to display and sell in public areas of the City, always communicate some idea or concept to those who view it, and as such are entitled to full First Amendment protection.
The license requirement as it relates to appellants, however, which effectively bars them from displaying or selling their art on the streets, is too sweeping to pass constitutional muster. See, e.g., Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429-30, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993). The district court's failure to properly analyze the questions of narrow tailoring and alternative channels was an abuse of discretion that led to an incorrect result.
The ordinance is a de facto bar preventing visual artists from exhibiting and selling their art in public areas in New York. The total number of licenses outstanding at any given time is a low 853. Those fortunate enough to possess one of these permits may automatically renew it annually which, of course, means that late-comers like appellants have little hope of securing a license in the foreseeable future. In addition to this all-but-impenetrable barrier, a 500-to-5000 person waiting list makes appellants' prospects of securing a license apparently nonexistent, a fact conceded at oral argument. [FN7]
The City may enforce narrowly designed restrictions as to where appellants may exhibit their works in order to keep the sidewalks free of congestion and to ensure free and safe public passage on the streets, but it cannot bar an entire category of expression to accomplish this accepted objective when more narrowly drawn regulations will suffice. The City points to nothing on this record concerning its need to ensure street safety and lack of congestion that would justify the imposition of the instant prohibitive interdiction barring the display and sale of visual art on the City streets.
Displaying art on the street has a different expressive purpose than gallery or museum shows; it reaches people who might not choose to go into a gallery or museum or who might feel excluded or alienated from these forums. The public display and sale of artwork is a form of communication between the artist and the public not possible in the enclosed, separated spaces of galleries and museums.
Appellants are interested in attracting and communicating with the man or woman on the street who may never have been to a gallery and indeed who might never have thought before of possessing a piece of art until induced to do so on seeing appellants' works. The sidewalks of the City must be available for appellants to reach their public audience. The City has thus failed to meet the requirement of demonstrating alternative channels for appellants' expression.
On the basis of this record before us, the City's requirement that appellants be licensed in order to sell their artwork in public spaces constitutes an unconstitutional infringement of their First Amendment rights. The district court abused its discretion in denying the preliminary injunction.
Finally, we note that the district court was similarly incorrect in its rejection of appellants' argument under the Equal Protection Clause of the Fourteenth Amendment. The requirement that appellants' art cannot be sold or distributed in public areas without a general vendors license, while written material may be sold and distributed without a license, must fall for the same reasons outlined above. Since the ordinance does impermissibly impinge on a fundamental right, the district court incorrectly dismissed the equal protection argument under a rational basis test.
*10 Accordingly, the judgment of the district court is reversed.