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 original paintings while 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 the police what the problem is they tell you itís a quality of life operation and to shut up and keep walking. Is this happening in China or Iraq? No, itís 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 the City's image has become the key factor in all governmental decisions. Achieving a public perception of "Quality of Life" is now the main object of City Hall's policies. Unfortunately, it's not the average person's life quality the Giuliani administration is focused on improving.
Corporations and real estate interests (which provide most of the funds for election campaigns) are viewed by this administration as the rightful proprietors of the Cityís sidewalks, parks and streets. These business interests see sidewalk displays of art or street culture of any kind as a blemish disfiguring the exclusive image and potential market value of their property.
In order to fully control the public spaces near their property, New York Cityís most powerful real estate associations and corporations have formed their own independent governments or B.I.D.'s (Business Improvement Districts). B.I.D.s act as an unelected and unaccountable shadow government running key areas of New York City. They 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 building a self-administered court system in which to try local "quality of life offenders".
The Fifth Avenue and Times Square B.I.D.s, which dominate the entire B.I.D. scheme, operate a Community Court on 54th Street to handle quality of life crimes committed within their territory more "efficiently". Convicted defendants are put to work within the B.I.D. doing "community service", i.e. cleaning the streets for the B.I.D.
While some B.I.D.s sponsor high-profile social services outreach programs, B.I.D.s have also been 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.
Sidewalk art displays have been described by B.I.D. directors as magnets for prostitution, three-card-monte gangs, pickpockets and petty crime. In the art capital of the world artists are demonized as "parasites" in order to justify eliminating them from the streets. Previous to this policy, sidewalk art displays were seen as non-threatening or as a cultural asset. New York City 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 First Amendment freedom of speech.
In 1993, led by the Fifth Avenue Association, the City's B.I.D.s attempted to eliminate all street vending. Artistsí displays were reclassified and a license 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 the City's own legal briefs filed in Federal Court, "impossible for artists to obtain". Artists throughout the City were handcuffed and arrested and had 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 were ever found guilty of a crime or ever had a trial. 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. (Artistsí Response To Illegal State Tactics) brought a Federal lawsuit against the City claiming that their right to freedom of expression was being violated. In response, five of the most powerful B.I.D.s (The Fifth Avenue Association, The Alliance For Downtown New York, The Madison Avenue B.I.D., The Grand Central Partnership and The 34th Street Partnership) joined with The SoHo Alliance to file a brief in Federal Court declaring visual art to be unworthy of First Amendment protection.
The 30 page brief explained the B.I.D.sí position by claiming, "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)..."
The real agenda behind harassing street artists is not that the B.I.D.s dislike art but that they view sidewalk art displays as a legal obstacle to the overall process of sterilizing "their" streets. By successfully eliminating constitutionally protected activities they hope to wipe out all street culture and non-corporate expression.
Although they claim that public safety and the preservation of a visually uncluttered environment are behind the decision to restrict artists the Giuliani Administration spent much of the past four years promoting its Street Furniture Initiative, which will soon bring thousands of new advertising kiosks to sidewalks throughout the City. Many of these huge eye level kiosks will feature flashing lights and moving digital texts, creating a new hazard 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 flashy new ad spaces.
To avoid negative publicity, City officials have made a concerted effort to suppress media coverage about the street artist policy, routinely denying that arrests are made or art confiscated despite the existence of hundreds of photographs and videotapes. Reporters researching this issue have been told that their 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 perpetrated its illegal crackdown on artists, corporations such as Nike, Disney, Sony and Chase Manhattan to name only a few, were given unprecedented use of city streets and parks to promote their corporate image and their latest products. In arguments before the Federal 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 the only reason.
Genuine grassroots freedom of expression is seen by many business interests as a threat. If the average person is allowed to use the Cityís public spaces to communicate, post a leaflet, advocate a cause or advertise their creations it threatens the business communities monopoly on these basic activities. Although politicians and corporations pay lip service to free enterprise, freedom of speech and equal opportunity, they are actively trying to deny these rights to the general public.
While most Americans fully endorse the abstract concept of free speech, its practical exercise by flesh and blood individuals rather than institutions is often less readily accepted or understood. Some of the cultural leaders that publicly defend artists' rights or laud themselves for obtaining funding for arts institutions are working hand in hand with those attempting to take those same rights away from actual artists.
New Yorkís real estate interests and corporations contribute hundreds of millions of dollars each year to the Cityís art museums, parks and cultural institutions. This investment provides a unique public relations value. In many cases these same business interests are the same people behind the artist arrests, anti-free speech and privatization of public space agendas. While condemning human rights abuses in China, Iraq or Cuba, they endorse similarly repressive policies applied to their fellow citizens in the U.S. under the guise of "quality of life".
Although concerns about crime and sidewalk congestion have a legitimate place in governmental decisions, real quality of life is based on keeping our most basic human right intact and unabridged: freedom of speech.
The First Amendment protects those who may not have money, attorneys or friendly politicians to speak for them. It is the average personís only weapon of 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 depended on it, because in fact, they do.
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 courtís ruling that fully supported the Cityís artist arrest policy. The following are selected quotes from the 2nd Circuit decision: [cite as Bery et al v. City of New York / Lederman et al v. City of New York #95-9089]. On June 3rd, 1997 The U.S. Supreme Court rejected Mayor Giulianiís appeal of 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. 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 Cityís 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 Americanís right to free expression will have been abridged.
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.