Giuliani Wants to End 1st Amendment Rights in NYC
by Robert Lederman
August 11, 2001
On the same day he announced the resumption of toxic spraying for West Nile Virus, Mayor Giuliani's lawyers claimed they will attempt to change a fundamental NYC law in retaliation for street artists winning their second Federal lawsuit concerning First Amendment rights on NYC streets.
The law in question was passed in 1982 by the NY City Council granting book vendors, authors and newspaper publishers an exemption from any licensing or permit requirement based on the freedom of speech clause in the U.S. and NY State Constitutions. Two Federal lawsuits, Lederman et al v City of New York/ Bery et al v City of New York decided in 1996 and Lederman et al v Giuliani decided in 2001 [see below] extended the licensing/permit exemption to street artists.
In order to overcome these Federal rulings the Giuliani administration would have to convince the NY City Council to revoke the 1982 law. What this would result in his a complete elimination of the right to sell, give away or even display art, books, leaflets and newspapers on the street or within 350 feet of any park without first obtaining permission from the Mayor. Even making a speech or holding a protest would require a permit.
Such a new law could not be applied just to street artists without violating the 14th Amendments equal protection clause. Among the changes that would be required to make the new law pass Constitutional scrutiny would be to apply it to tens of thousands of newspaper vending boxes that are located on street corners and around parks throughout the City.
These steel and plastic boxes represent a substantial part of the distribution system for the NY Times, Post, Daily News, Newsday, NY Press, Village Voice, Wall Street Journal and for more than 20 free community papers. None require a license, fee or getting permission from the City.
The NYC Department of Parks has already created a law requiring any gathering of 20 or more persons for whatever reason to obtain a permit. The law applies to rallies, discussion groups, sports activities or even a silent prayer meeting. Not surprisingly, it is selectively enforced, most usually against activists, teenagers and minority groups.
Media coverage of the street artist ruling follows:
NY Times August 11, 2001
Judge Bars Permit Requirement for Art Vendors
By KATHERINE E. FINKELSTEIN
Robert Lederman, at the microphone, is among the artists who sued to challenge the city's rule requiring permits to sell works outside the Metropolitan Museum of Art.
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 August 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 [pertaining to the] 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 came 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 $1,000.00.
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 Post 8/11/2001
COURT: PERMIT ART WITHOUT PERMIT
By GEORGETT ROBERTS
Artist Robert Lederman, with one of his creations yesterday, hails a court ruling upholding the right of artists to sell their work on city streets without a permit.
- V. Louis
August 11, 2001 -- In a victory for street artists, a federal appeals court has upheld a Supreme Court ruling that they don't need a permit to sell their wares in the Big Apple.
Mayor Giuliani's crackdown on quality-of-life offenses included artists who sell paintings and sculptures on the street. The mayor claimed they're not protected by the First Amendment and therefore require a vendor's permit.
The artists were often arrested and had their work seized and destroyed by police, critics charge.
But Tuesday, Manhattan federal Judge Lawrence McKenna ruled against Giuliani.
He upheld an earlier decision by the Manhattan Supreme Court in a class-action suit by street artists, including Robert Lederman, who sued Giuliani in 1997 because they were completely disgusted over being arrested.
"It's great," Lederman said at a press conference yesterday. "Today is like a culmination of eight years of work undoing the harm that Mayor Giuliani did to artists and to free speech."
The ruling means street artists are free to create, display and sell their paintings in or within a 350-foot radius of city parks - without having to seek or get permission from the city.
Since the troubles erupted with Giuliani, some of Lederman's work, using acrylic and cardboard, has reflected his disdain for the mayor.
There are postcards and paintings featuring His Honor as a ghoulish-looking Hitler with captions such as "Adolf Jailiani," "Zero Tolerance for Arts" and "It's disgusting - Giuli-anus."
The mayor's office did not respond for comment on the ruling.
NY Law Journal front page top left August 10, 2001
Artists suing New York City for the right to sell their work on the streets were victorious this week, as the U.S. Court of Appeals for the Second Circuit held that a rule preventing such sales violates the City's administrative code, which makes exception for the artwork. On another issue, the City was successful in convincing the court that administrative code provisions against defacing public property passed constitutional muster when used to prosecute artists who draw on sidewalks. But the Second Circuit allowed an artist arrested under the provisions to continue his suit against the City on the grounds he was unfairly "targeted" by Mayor Giuliani. Entire ruling on Wed.
For Immediate Release
Street Artists win Second Federal Lawsuit Against Giuliani;
Parks Department Artist Permit System Ended by Federal Court;
press conference Friday 8/10/2001 12 noon in front of Metropolitan Museum of Art
Contact# 718 743-3722
Federal Judge Lawrence McKenna has just issued a ruling in Lederman et al v Giuliani 98 Civ. 2024 (LMM) in favor of the NYC street artist plaintiffs. "Section 105 (b) ås permit requirement cannot be enforced against art vendors or indeed against book vendors", the judge wrote agreeing with both an earlier ruling by the NY State Appeals Court in a related case and with the 1996 street artist ruling by the second circuit Federal Appeals court.
In conversations with the plaintiffs lawyers, Corporation Counsel Robin Binder acknowledged the termination of the Parks Department artist permit. Binder also claimed the City would now seek to change NYC law, specifically the licensing exemption for First Amendment protected book and newspaper vendors. Since winning the first street artist lawsuit in 1996 [Lederman et al v City of NY/Bery et al v City of NY] artists have the same licensing exemption as book and newspaper vendors.
Eliminating that exemption would mean significant restrictions on free speech generally and specifically on tens of thousands of newspaper vending boxes owned by the NY Times, Post, Daily News, Village Voice and other NYC papers which are set up without any permit, fee or permission on NYC streets.
Artists plaintiffs and their attorneys will hold a press conference outside the Metropolitan Museum of Art Friday August 10, 2001 at 12 noon. The exact location will be on the south side of the Met under the shade trees where the artists display their works.
Note: This is a completely different ruling from the one announced on July 31, 2001 by the NY State Appeals Court, which also ruled against the City's artist permit.
A.R.T.I.S.T. president and lead plaintiff Robert Lederman, who has been arrested more than 40 times for protesting against the Mayor, made the following statement on winning the suit:
"We street artists have spent eight years fighting Mayor Giuliani's efforts to restrict First Amendment freedom. Long before anyone else was sounding the alarm our message was that this Mayor had an agenda about limiting freedom of speech. It's a great feeling to know that our efforts continue to make this City a place where artists can enjoy the freedom to create display and sell their works and that this most essential of human freedoms can continue to be enjoyed by all New Yorkers".
Robert Lederman, President of A.R.T.I.S.T.