1st Amendment Vending
How we won our rights...
NY Times
August 11, 2001
Judge Bars Permit Requirement for Art Vendors
By KATHERINE E. FINKELSTEIN
A federal judge has ruled that the Giuliani administration's requirement that art vendors in parks have permits is a violation of the city code, which unconditionally prohibits mandatory licensing for those who sell art and books.
The decision, issued Aug. 7 by Judge Lawrence M. McKenna of United States District Court in Manhattan, did not delve into whether the city's actions violated the artists' constitutional right to free speech. But in multiple lawsuits and legal motions that the artists have won in state and federal courts, they have argued that their rights to free speech were being restricted.
The decision, which the city vowed yesterday to appeal, affects street artists who display their work in parks or on adjacent sidewalks, including those at the Metropolitan Museum of Art, which are part of Central Park. Their legal battle began in 1998 after the police began issuing summonses to those without permits. The conflict escalated into street protests and arrests, and the police confiscated some artwork.
Yesterday, a group of the artists gathered outside the Metropolitan Museum to celebrate the decision. Holding an unflattering painting of Mayor Rudolph W. Giuliani, Robert Lederman, one of the artists, said that the legal victory protected the rights of everyone from leafleteers to media magnates whose papers are sold in vending boxes, which require no permits.
''Our efforts continue to make this city a place where artists can enjoy the freedom to create, display and sell their works,'' he said, ''and this most essential of human freedoms can continue to be enjoyed by all New Yorkers.''
The federal decision came on the heels of a state decision last week that also favored the artists. A state appeals court affirmed the decision of a judge in State Supreme Court in Manhattan who dismissed criminal charges against two artists who were given summonses for selling artwork without a permit.
The Manhattan district attorney's office has decided to appeal that decision also, according to city officials. The officials acknowledged that after the state decision last week they told the police and the Parks Department, which has jurisdiction over the space, to stop issuing summonses to the artists.
Yesterday, city officials characterized the defeats in state and federal courts as the result of confusion over the interpretation of the city code. The parks commissioner, Henry J. Stern, called the case ''a highly technical decision dealing with effect of administrative code on park-related matters.''
But he said that the Parks Department hoped to impose ''reasonable regulations'' either through legal remedy or some amendment to the city code. Currently, he said, ''the unregulated commercial sale of art in public parks is inappropriate and intrusive.''
A lawyer for the city, Robin Binder, said last night, ''The city thinks the decision is wrong and intends to appeal.'' The city can appeal to the United States Court of Appeals for the Second Circuit and beyond that to the United States Supreme Court.
Both sides seemed poised for further legal fighting yesterday. At the Metropolitan Museum, one of the artists, Wei Zhang, said that he had come from China, a country without human rights or free speech. After getting here, he said, the Giuliani administration had him arrested and confiscated his paintings. ''I come to the wrong place again,' '' he said.
The discord began in March 1998, when the city began to try to regulate the cluster of street artists outside the Metropolitan Museum and began issuing 24 permits a month -- at $25 each -- to those selling their work there. The fine for those selling works without permits was $1,000.
When the artists organized protests, singing and likening Mr. Giuliani to a dictator, the police started arresting them, leading a number of them away in handcuffs. Officials from the Metropolitan Museum said at the time that they did not have any complaints with the artists.
The artists organized a group, Artist, an acronym for Artists' Response to Illegal State Tactics, and demanded that the state abide by a 1996 federal court decision that was the first to reject the city's efforts to license artists. Their protests and the arrests continued, and the lawsuits began as they fought what they called restrictions on their freedom.
In August 1998, Judge Lucy Billings of State Supreme Court in Manhattan dismissed the charges against several of the artists, ruling that city law prevented the licensing of book and art vendors. She quoted a 1982 City Council law that said, ''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.''
While the city appeals, one of the lawyers for the artists, Robert Perry, said his clients might go to trial to get damages for the restriction on their livelihood.
Meanwhile, the artists seemed to be doing a brisk business selling postcards that depicted Mr. Giuliani in various monstrous guises.
NY Times
June 1, 2002
Ban Lifted on Capitol Steps Protests
A federal appeals court panel today struck down a rule banning demonstrations on a sidewalk outside the United States Capitol, ruling that the ban violated freedom of speech.
The unanimous decision by a three-judge panel of the federal Court of Appeals for the District of Columbia Circuit upheld a First Amendment constitutional challenge to the rules, which prohibit ''demonstration activity'' like parading, picketing, leafleting, vigils, sit-ins and speechmaking.
The demonstration ban was adopted by the Capitol Police Board, which has the power to adopt regulations under federal law. But the three-judge panel held that the site of the demonstration, a sidewalk leading to the Capitol steps, was a public forum.
Judge David S. Tatel wrote that the sidewalk wraps around the Capitol almost without interruption, giving pedestrians access to the front of the building, which he called a centerpiece of United States democracy.
The case involved Robert Lederman, an artist who demonstrated at the Capitol to publicize a lawsuit he and others brought to sell their work on New York City sidewalks.
Two Capitol police officers in 1997 arrested Mr. Lederman, who was distributing leaflets and carrying a sign reading ''Stop Arresting Artists'' when he was arrested. He was acquitted by a judge in the city's Superior Court who found the ban unconstitutional.
Mr. Lederman then sued in federal court, challenging the ban's constitutionality and seeking damages from various parties, including the two police officers.
The court rejected the argument by government lawyers that the sidewalk functioned as a ''security perimeter'' around the Capitol and therefore justified the ban.
The court ordered that an injunction be entered barring enforcement of the demonstration ban.
The sidewalk at issue currently is closed to the public during construction of a visitors' center, a project expected to last several years.
NY Times
June 3, 1997
SoHo Street Artists Triumph As High Court Rebuffs City
By RICK LYMAN
Ending a case that pitted the First Amendment rights of street artists against New York City's efforts to control sidewalk congestion, the United States Supreme Court yesterday refused to hear the city's appeal of an earlier ruling that barred it from requiring the artists to be licensed.
The city must now develop a policy to bring it into accord with a decision last October by the Federal Court of Appeals for the Second Circuit, which said street artists are protected by the First Amendment in the same way as sidewalk booksellers, who do not need city licenses.
''The city is now working on a policy to bring us into compliance with today's court action,'' said Colleen Roche, a spokeswoman for Mayor Rudolph W. Giuliani, ''and, while disappointing, today's decision is not unanticipated.''
In recent years, as the Giuliani administration began to crack down on ''quality of life'' crimes, street artists began to be considered in the same category as T-shirt vendors, who are required to have licenses. Unlicensed artists trying to sell their wares were often arrested or chased by the police out of such prime selling areas as SoHo and Times Square. There are only 853 licenses to go around, however, and there is a long waiting list.
Citing the General Vendors Law, the administration argued that city officials had the right to restrict the number and location of street artists as they do other types of vendors, to ease congestion and insure a free flow of pedestrian traffic.
But the artists sued and, asking for a temporary restraining order, argued that they deserved the same protections as booksellers and others selling printed materials, who had long been exempt from licensing.
In 1995, a District Court refused to grant the restraining order. The artists appealed and many continued to sell their works, risking arrest. But the circuit court ruled in October that the lower court had erred in its interpretation of the First Amendment.
''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 First Amendment protection,'' the circuit court ruled. ''The city's requirement that appellants be licensed in order to sell their art work in public spaces constitutes an unconstitutional infringement on their First Amendment rights.''
Robert Lederman, a plaintiff in the case and head of an association of street artists, said the Supreme Court's decision was a ''significant triumph'' for the estimated 500 artists who try to sell their work along the city's sidewalks.
''We are finally going to be treated like ordinary citizens instead of second-class citizens,'' said Mr. Lederman, who heads Artists Response to Illegal State Tactics, or Artist. ''I've been selling my works on the streets since 1962, when I was 12 years old. It is a tremendous relief to know that I am not subject to arrest anymore.''
Councilwoman Kathryn E. Freed, who has supported efforts to regulate sidewalk congestion, including the licensing of artists, said after yesterday's decision, ''I don't have a problem with them saying that visual art is as important as written art.'' However, she added, ''the municipality has to have the right to have some sort of control over its sidewalks.''
Robert Louttit, director of community safety for the Fifth Avenue Business Improvement District, which was among the most vocal groups calling for regulation of street artists and other vendors, said he was disappointed with the ruling.
''We've got sidewalks that are often very, very crowded,'' Mr. Louttit said. ''To add obstacles to pedestrian traffic is a real problem, often forcing people to walk out in the street just to get from one place to the other, and it creates an attractive environment for pickpockets and other crime.''
Representatives for street artists said yesterday that the administration had continued crackdowns against them as recently as last weekend, despite the appeals court ruling. Ms. Roche declined to say what, if any, action would be taken against unlicensed street artists until the new policy is drafted.
Most of the confrontations between the police and the street artists have occurred along West Broadway and Prince Street in SoHo, a neighborhood represented by Ms. Freed in the City Council.
Mr. Lederman has charged that the city and Ms. Freed are trying to restrict the street artists at the behest of landlord groups. Ms. Freed said she is acting only on requests from SoHo residents that something be done about congestion.
An immediate impact of yesterday's decision, Mr. Lederman said, is that the quality of art being offered for sale on the sidewalks will go up. The police have frequently confiscated and destroyed art works, he said, making many artists leery of exhibiting their best efforts.
''Now I think you will find a Renaissance of street art,'' Mr. Lederman said. ''This decision will be a cultural plus for everybody in the city.''