Posted by Robert Lederman on November 26, 1997 at 13:20:27:
Why Does New York City Still
Illegally Arrest, Harass and Persecute
Street Artists?
The Answer Is B.I.D.s (Business Improvement Districts)
By Robert Lederman,
President of A.R.T.I.S.T.
(Artists’ Response To Illegal State Tactics)
“Congress shall make no law respecting an
establishment of religion;, or prohibiting the free
exercise thereof; or abridging the freedom of speech
or of the press; or the right of the people peaceably
to assemble, and to petition the government for a
redress of grievances." -The First Amendment
"A picture is worth a thousand words."
Ancient Chinese saying
Imagine standing on a city street viewing a
sidewalk display of paintings and discussing
them with the artist. Suddenly, two vans and
a police car pull up. Twenty armed,
bulletproof-vested plainclothes cops jump
out, surround the artist, place them in
handcuffs, confiscate all of the paintings and
push the artist into the van. When you ask
what the problem is the police tell you it’s a
“quality of life” operation, just shut up and
keep walking. Is this happening in China or
Iraq? No, it’s just a typical day in New York
City, the artist persecution capital of the
world.
Orchestrated by Mayor Rudolph Giuliani,
New York is undergoing a transformation in
which image has become the key factor in all
governmental decisions. Achieving the
public perception of "quality of life", (though
not necessarily the reality) is the goal of City
Hall's policies. Unfortunately, it's not the
average person's life quality the Giuliani
administration wants to improve.
Corporations and real estate interests, which
provide most of the funds for election
campaigns and receive hundreds of millions
of dollars in unjustified tax-write offs, are
viewed by this administration as the rightful
proprietors of the City’s public sidewalks,
parks and streets. These business interests
view displays of art or street culture of any
kind as a blemish disfiguring the exclusive
image and market value of their property.
In order to exert total control over the public
space adjacent to their properties, New York
City’s business leaders have formed
unelected and unaccountable shadow
governments or B.I.D.'s (Business
Improvement Districts) to run key areas of
the City. B.I.D.s are authorized to assess
special taxes (more than $50 million last
year), have their own police and sanitation
services (often paid less than the minimum
wage) and are establishing a
self-administered court system in which to
try “quality of life” offenders more
“efficiently”.
The Fifth Avenue and Times Square B.I.D.s,
which dominate the entire B.I.D. scheme,
already operate a Community Court on 54th
Street to handle “quality of life” crimes
committed within their territory. Convicted
defendants, or those coerced into pleading
guilty, are put to work within the B.I.D.
doing “community service” which generally
consists of cleaning the streets for the B.I.D.
Some B.I.D.s began sponsoring homeless
outreach programs after being accused of
"hiring goon squads" to force homeless
people off the street [see 1995 City Council
Investigation on B.I.D.s]. Distinctions
between businesses, the police, social
services and an impartial criminal justice
system blur as they become one continuous
business enterprise. Many of the B.I.D.s are
managed by former high ranking New York
City police officials, providing the B.I.D.s
with a unique level of access to Police
Department resources and personel.
Sidewalk art displays have been described
by B.I.D. directors as magnets for
prostitution, three-card-monte gangs and
pickpockets. The reality is that the B.I.D.s
own high-priced stores, hotels and theatres
catering to tourists are what attracts these
activities.
In the art and free speech capital of the world
artists are being demonized as "parasites" in
order to justify ruthlessly eliminating them
from the streets. Previous to this policy,
sidewalk art displays were viewed 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 art didn't require a
license, based on First Amendment freedom
of speech.
Beginning in the late 1980’s the City's
B.I.D.s, led by the Fifth Avenue Association,
mounted a lobbying effort aimed at
eliminating all street vending. In 1993
artists’ displays were unofficially
recategorized as general vending and a
license suddenly became a requirement.
Since the City Council had previously frozen
the total number of vending licenses at the
853 then in effect (none of which were in the
hands of artists) a license was, to quote legal
briefs the City filed in Federal Court,
"impossible for artists to obtain". Artists
throughout the City began to be
systematically handcuffed and arrested and
have their art confiscated for the "crime" of
not having a license.
Fearing that an independent-minded judge
might find such an unreasonable licensing
requirement for First Amendment protected
expression unconstitutional, the City
meticulously avoided prosecuting a single
artists' case in Criminal Court. None of the
more than 500 artists arrested since 1993
have ever had a trial or been found guilty of
committing a crime. While never convicted,
artists rarely recovered their confiscated
paintings, which the City illegally sold at a
monthly Police Department auction or
destroyed.
In 1994, members of A.R.T.I.S.T. (Artists’
Response To Illegal State Tactics) filed a
Federal lawsuit accusing Mayor Giuliani and
the City of violating their right to freedom of
expression. In response, five of the most
powerful B.I.D.s filed an amicus brief in
Federal Court declaring visual art to be
unworthy of First Amendment protection.
The 30 page brief, signed by The Fifth
Avenue Association, The Alliance For
Downtown New York, The Madison Avenue
B.I.D., The Grand Central Partnership, The
34th Street Partnership and the SoHo
Alliance claimed, "The sale of artwork does
not involve communication of thoughts or
ideas" and warned of, "the dangers of
allowing visual art full First Amendment
protection". It went on to state, "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)..." Ironically, more
than 95% of the City’s art galleries and
museums are located within the areas
controlled by The Fifth Avenue Association,
The Madison Avenue B.I.D.. and the SoHo
Alliance.
The agenda behind harassing street artists is
not that the B.I.D.s dislike art but that they
view artists’ freedom of speech as a legal
obstacle in the overall process of cleansing
and controling their territory. By restricting
constitutionally protected activities they
hope to wipe out all street culture and
non-corporate expression, leaving themselves
a monopoly on expression in public spaces.
Although the Giuliani administration claims
that public safety and the preservation of a
visually uncluttered environment are the
justification for restricting artists the same
administration spent much of the past four
years developing its controversial Street
Furniture Initiative. This exclusive twenty
year contract with a French based
multi-national corporation involves
contructing thousands of advertising kiosks
on sidewalks throughout New York City.
These sidewalk-congesting kiosks will
feature flashing lights, moving digital texts
and huge eye-level billboards, creating new
hazards for pedestrians and drivers while
bringing the City billions in ad revenue. Not
surprisingly, B.I.D. members will be the
prime clients for these expensive new ad
spaces.
To avoid negative press about their practice
of blatantly violating the Constitution, City
officials have made a concerted effort to
suppress media coverage about the street
artist issue. They routinely deny that any
arrests are made or art confiscated despite
the existence of extensive court records and
hundreds of photographs and videotapes.
Reporters researching this issue have been
told that access to Police Department sources
would be permanently blocked if they
continued to cover the artists' story. Protest
signs and petitions have been confiscated
from artist activists and artists have been
arrested simply for handing out literature or
photographs documenting the arrests.
At the same time that the City was
perpetrating its crackdown on artists,
corporations such as Nike, Disney, Sony,
Macys, Phillip Morris, Planet Hollywood
and Chase Manhattan were given
unprecedented use of city streets and parks
to promote their corporate image and their
latest products. In arguments before the 2nd
Circuit Federal Appeals Court, lawyers for
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.
Freedom of expression in the hands of the
general public is seen by many business
interests as a threat. If the average person is
allowed to use the City’s public spaces to
communicate, post a leaflet, advocate a
cause, advertise or sell their artwork it
threatens the business communities
monopoly on these activities. Although
politicians and corporations pay lip service
to free enterprise, freedom of speech and
equal opportunity, they are actively trying to
deny these same rights to the general public.
New York City based corporations and real
estate interests associated with the B.I.D.s
contribute hundreds of millions of dollars
each year to the City’s art museums, parks
and cultural institutions. The C.E.O.’s of
these companies sit on (and usually control)
the boards of the art museums. This kind of
cultural investment provides a unique public
relations opportunity for companies
routinely accused of polluting the
environment, mistreating employees,
engaging in political corruption or selling
products which cause disease and death.
Many of these business interests are the
same people behind the artist arrests,
anti-free speech and privatization of public
space agendas. While they and the elected
officials they control condemn human rights
abuses in China, Iraq or Cuba, they promote
similarly repressive policies applied to their
fellow citizens in the U.S. under the guise of
"quality of life".
The First Amendment protects those who
may not have money, attorneys or friendly
politicians to speak for them. It is the average
person’s sole defense against government
repression. Any attempt by government or its
corporate sponsors to suppress this right
must be denounced and resisted as if our
lives and freedom depended on it, because in
fact, they do.
Although concerns about crime and sidewalk
congestion have a legitimate place in
governmental decisions, real quality of life
depends on keeping our most basic human
right intact and unabridged: freedom of
speech.
The Court Case
On October 10th, 1996 The 2nd Circuit
Federal Appeals Court issued a sweeping
ruling in favor of the street artists. That
decision overturned a lower court’s ruling
that fully supported the City’s artist arrest
policy. On June 3rd, 1997 The U.S. Supreme
Court rejected Mayor Giuliani’s appeal of
the 2nd Circuit’s street artist decision
bringing the case to its conclusion.]
The following are selected quotes from the
2nd Circuit decision which is now the law in
New York: [cite as Bery et al v. City of
New York / Lederman et al v. City of New
York #95-9089].
“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. Indeed, written language is far
more constricting because of its many
variants--English, Japanese, Arabic, Hebrew,
Wolof, Guarani, 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 shortcut 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...
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.
Accordingly, the judgment of the district
court is reversed. “
After Winning the Court Case
Most observers believed that the arrests,
confiscations and illegal campaign of
harassment would stop after the City lost the
case. Instead, the City’s illegal actions have
continued right up to the present day.
Artists throughout the City are still routinely
threatened with arrest and confiscation of
their art by police officers who admit they
are responding to demands by Business
Improvement Districts and landlords to get
rid of the artists. Hundreds of summonses
have been issued to artists in SoHo, in
midtown and around Central Park, most of
which continue to be dismissed. Art work is
still being illegally confiscated by local
precincts and by the Peddler Task Force. The
N.Y.P.D. responds to organized street artist
resistance by deploying large contingents of
twenty to thirty uniformed and plainclothes
police officers. These swat-like teams close
off streets and sidewalks and swoop down on
the artists, who counter with immediate
demonstrations and acts of civil
disobedience.
The outcome of this struggle involves more
than just the rights and livelihoods of street
artists. If the City and the business
institutions that are driving its policy
succeed in ridding the streets of artists, every
American’s right to free expression will have
been abridged.
The following are a few of the previous court
cases which helped establish visual art as a
form of First Amendment protected
expression.
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
corresponds 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
receiving 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).
During the course of our lawsuit we
discovered that in 1982, the original wording
of the licensing exemption for book vendors
in the N.Y.C. Vending Ordinance 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.”
[add an ending like the beginning]
Contact #’s
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 or
(212) 561-0877 e-mail
ARTISTpres@aol.com or visit our web site:
http://www.openair.org/alerts/artist/nyc.html
Photos and videos 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.
Other contact numbers:
Fifth Avenue Association (212) 736-7900
Fifth Avenue B.I.D. (212 ) 265-1310
Times Square B.I.D. (212) 768-1560
Madison Ave. B.I.D. (212) 861-2055
Alliance for Downtown N.Y. (212)
566-6700
Grand Central Partnership (212) 818-1777
N.Y.C. Corporation Counsel (attorneys
representing the City) (212) 788-0303
Mayor Giuliani's press office (212) 788-2958
Peddler Task Force (212) 760-8305
Wayne Cross and Brett Goodman (attorneys
for the artist/plaintiffs (212) 259-8000.
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