NYC street artists win again (did you get this?)
Robert Lederman
Contact:
Robert Lederman, President of A.R.T.I.S.T.
(Artists' Response To Illegal State Tactics)
robert....@worldnet.att.net
Street artist information and Federal Court rulings
(1998-2002) http://baltech.org/lederman/
1994-1998) http://www.openair.org/alerts/artist/nyc.html
The 2nd circuit Federal Appeals Court has just issued a ruling in Lederman
et al v Giuliani completely in favor of the street artists (see ruling
below). The ruling deals with the Parks Department artist-permit which a
lower Federal court (Judge Lawrence M. McKenna) overturned in August 2001.
This lawsuit has two parts, the Parks artist permit issue and a different
issue involving Mayor Giuliani targeting Robert Lederman and other members
of A.R.T.I.S.T. for false arrest at protests throughout the City. Lederman
is best known as the creator of thousands of paintings and signs about Mayor
Giuliani's policies resembling a police state. He was arrested more than 40
times during the Mayor's term in office and never prosecuted.
This ruling brings to an end 5 1/2 years of litigation challenging the Parks
Department artist permit. The remaining section of this lawsuit about Mayor
Giuliani, Robert Lederman and the other Lederman plaintiffs is still
expected to go to trial.
The 2nd circuit ruling below confirms exactly what the plaintiffs told the
City years BEFORE they created the artist permit in 1998; that it directly
violated the 1996 Bery/Lederman decision following a similar lawsuit brought
by many of the same plaintiffs [ SEE:
http://laws.lp.findlaw.com/2nd/9590890.html ].
Exactly as in the previous lawsuit, the Giuliani administration and it's
legal advisors determined their license/permit requirement was both
Unconstitutional and illegal in that it directly violated existing NYC law.
The administration then aggressively pursued a knowingly-false arrest policy
against street artists, repeatedly arresting them, confiscating and
destroying their art then dismissing every single case.
Today is a great day for artists' rights. This new ruling further affirms
the principle that visual art is fully protected by the First Amendment and
that the City cannot arbitrarily create a license or permit scheme to
restrict artists in violation of freedom of speech. For numerous articles
and documents from this lawsuit see http://baltech.org/lederman/
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER DATED 7/15/03
At a stated term of the United States Court of Appeals
for
the Second Circuit, held at the Thurgood Marshall United
States
Courthouse, Foley Square, in the City of New York, on the
15th day of July , two thousand and three.
Present:
HONORABLE RALPH K. WINTER, HONORABLE JOSEPH M. MCLAUGHLIN, HONORABLE JOSE A.
CABRANES,
ROBERT LEDERMAN, et al.,
Planitiffs-Appellees
Del-Bouree Bach, et al. ,
Consolidated-Plaintiffs-Appelles
No. 01-9029
v.
RUDOLPH GIULIANI,
Mayor of the City of New York, in his individual and official
capacities, CITY OF NEW YORK, NEW YORK CITY POLICE
DEPARTMENT, HOWARD SAFIR, Commissioner of the New York City Police
Department, in his individual and official capacities,
NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, HENRY J. STERN,
Commissioner of the Department of Parks and
Recreation, in his individual and official capacities, OFFICE OF
COURT ADMINISTRATION OF THE CITY OF NEW YORK, and
OFFICER HAYNES, OFFICER E. RYAN, SERGEANT BROWN and SERGEANT ROSADO, in
their individual and official capacities,
and John Doe Nos. 1-10, Defendants.
Corporation Counsel of the City of New
York (Michael A. Cardozo, Leonard
Koerner, Robin Binder, of counsel),
New
York, New York.
Robert Fiertman, Nesenoff &
Miltenberg,
LLP, New York, New York, Paul A.
Shneyer, Paul A, Shneyer, P.C., and
Carol Novak (Robert T. Perry, Center
for
Constitutional Rights, on the brief),
New York, New York.
Appeal from the United States District Court for the
Southern District of New ~York (McKenna, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND
DECREED that the judgment of the District Court is hereby
AFFIRMED.
Appearing for Appellees:
The City of New York and various City officials and law
enforcement officers appeal from a permanent injunction
issued by
Judge McKenna. We affirm for substantially the reasons stated
by
the district court in its memorandum and order. See Lederman
V.
Giuliani, 2001 WL 902591 (S.D.N.Y. Aug. 7, 2001)
Although the district court opinion, and therefore our order disposes of
this appeal on state law grounds -- in particular whether enforcement of
Section 1-05(b) of Title 56 of the Rules of the City of New York against art
vendors violates Section 20-473 of the Administrative Code of the City of
New York - - we have decided not to certify these issues to the New York
Court of Appeals because the interpretation of Section 20-473 will be driven
by a prior decision of our court based on federal constitutional grounds.
See Bery v~ City of New York, 97 F.3d 689, 695-96, 699 (2d Cir. 1996)
(extending exemption under 20-473 to visual art and art vendors on First
Amendment and Equal Protection grounds) . For example, Bery was relied upon
by the New York Criminal Court as the basis for its dismissing criminal
charges against art vendors for violations of Section 1-05(b), see People v.
Balmuth, 6~1 N.Y.S.2d 439, 443-44 (Crim. Ct. 1998), aff'd, 731 N.Y.S.2d 314
(App. Term 2001) (per curiam), leave to appeal denied, 97 N.Y.2d 678 (2001),
People v. Patrick, 738 N.Y.S.2d 295 (2001) . Berv was also relied upon by
the district court in its memorandum and order which became the basis for
the issuance of the permanent injunction. See Lederman, 2001 WL 902591, at
*4.*6. Because resolution of the state law issues is driven by our prior
interpretation of federal constitutional law the central question on appeal
is whether the district court properly applied Bery. We find that it did and
therefore affirm.
-----------------
Excerpted from:
Bery et al v City of New York / Lederman et al v City of New York
http://laws.lp.findlaw.com/2nd/9590890.html it is also at
http://csmail.law.pace.edu/lawlib/legal/us-legal/judiciary/second-circuit/te
st3/95-9089.html
(The ruling that artists do not need a vending license or a permit on the
street in NYC.)
"Appellants Robert Bery et al. (94 Civ. 4253) and Robert Lederman et al. (94
Civ. 7216), in separate actions below, sought by motions for a preliminary
injunction to enjoin enforcement of the General Vendors Law, ' 20-452 et seq
. of the Administrative Code of the City of New York ("General Vendors
Law"), which bars visual artists from exhibiting, selling or offering their
work for sale in public places in New York City without first obtaining a
general vendors license. Appellees City of New York and various municipal
bodies and officials charged with administration and enforcement of the
General Vendors Law ("the City") opposed the motions. The district court
denied the motions; both sets of appellants appeal...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...Visual artwork is as much an embodiment of the
artist's expression as is a written text, and the two cannot always be
readily distinguished...The sale of protected materials is also
protected...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. Bery , 906 F. Supp. at 167. 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. Courts must
determine what constitutes expression within the ambit of the First
Amendment and what does not. This surely will prove difficult at times, but
that difficulty does not warrant placing all visual expression in limbo
outside the reach of the First Amendment's protective arm. Courts have
struggled with such issues in the past; that is not to say that decisions
are impossible."
The Parks Department artist-permit lawsuit, Lederman et al v Giuliani/Bach
et al v City of NY
98 Civ. 2024 (LMM), 98 Civ. 2400 (LMM)
NY Times August 11, 2001 Judge Bars Permit Requirement for Art Vendors
"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."
NY Times
August 20, 2001
NY Times Editorial
New York's Art Wars Continue
By now it should be transparently clear to the Giuliani administration that
it is not going to win the battle to require street artists to obtain
permits before selling their wares on the streets or in certain park spaces.
It has lost this fight at nearly every court level and usually for the same
reasons - that licenses are inconsistent with city law and with the broader
purposes of the First Amendment. Mr. Giuliani, stubborn as usual, plans to
appeal. He would be much better advised to let the artists go about their
business while exercising the city's uncontested, legitimate right to decide
where and when the vendors operate so that they do not pose crowding or
public safety problems.
In the latest ruling, a federal judge, Lawrence McKenna, found that
requiring artists to get permits violates a city code prohibiting mandatory
licensing of people who sell art or books. His ruling is consistent with
several others handed down since 1996, when the United States Court of
Appeals criticized the city for a permit process aimed mainly at street
artists occupying the plaza abutting Central Park near the Metropolitan
Museum of Art.
Artists who ignored the permits were arrested and their work was
confiscated. The artists brought suit, and suffered their one and only legal
setback when a state court upheld the arrests. When the appeals court
overruled that decision, it said "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
United States Supreme Court refused to hear the city's appeal. Earlier this
month, a state appeals court affirmed a lower-court decision dismissing
criminal charges against two artists who were given summonses for selling
artwork without a permit.
Judge McKenna's opinion avoided First amendment issues but pointed out at
that the city code specifically prohibits mandatory licensing of people who
sell art or books. The judge cited a 1982 law in which the City Council
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."
--------------------------------------------------
Ex-Mayor Rudolph Giuliani to face questioning in case by artist
By LARRY NEUMEISTER
Associated Press Writer
June 13, 2002, 6:59 PM EDT
NEW YORK -- Former Mayor Rudolph Giuliani will answer legal questions in a
lawsuit brought by an artist who says he was repeatedly arrested after
depicting Giuliani as Adolph Hitler in a painting, the city says.
Giuliani was one of 11 former city officials artist Robert Lederman, of
Rutherford, N.J., wanted questioned by lawyers in the case in U.S. District
Court in Manhattan.
Lederman said he was falsely arrested more than 40 times while Giuliani was
mayor and was never convicted of a crime.
City lawyers opposed the allowance of depositions with the others, including
a former police commissioner, an ex-parks commissioner and past high-level
press aides of the mayor.
In court papers filed Wednesday, the city said Giuliani will be produced for
a deposition but the others "have no knowledge of any prospective
enforcement action against Mr. Lederman."
Robin Binder, a city lawyer, declined to comment.
In a letter sent to U.S. District Judge Lawrence M. McKenna, who is hearing
the case, the city said it will ask for a court conference to "discuss
limiting the scope and duration of the former mayor's testimony."
"We're floored," Lederman said of his surprise that the city is not
challenging the deposition by Giuliani. "For eight years, Giuliani has dealt
with me at arm's length, through the police, through the court. Now I'm
finally going to get to confront him up close and personal and get him to
explain why he had me falsely arrested so many times."
Lederman said he and other artists saw a side of Giuliani that many across
the country do not know about.
"I'm certainly hoping that the outcome of this deposition will let the rest
of the country know that this man's no hero," Lederman said. "In fact, he's
a villain."
A message left with a spokeswoman for Giuliani was not immediately returned.
In court papers, the city has said that Lederman was arrested several times
after he wrote "Giuliani P> Police State" and other political statements on
the public sidewalk in chalk.
It said the arrests were permissible because Lederman violated laws
prohibiting the defacement of the public streets.
-----------
NY Post 6/14/2002
RUDY WILL TESTIFY VS. HITLER ART
June 14, 2002 -- Rudy Giuliani will testify against his No. 1 one artistic
enemy - the painter who depicted him as Adolph Hitler.
The former mayor will be deposed as part of the city's defense against a
federal suit by artist Robert Lederman, who claims he was illegally targeted
for arrest by the Giuliani administration.
City lawyers said in a letter to a federal judge yesterday that Giuliani
would not seek a protective order to avoid testifying at a deposition.
But protective orders have been sought by former Police Commissioner Howard
Safir, former Parks Commissioner Henry Stern, Central Parks Conservancy
President Regina Peruggi and seven other former high-level city aides, said
the letter to Judge Lawrence McKenna.
Lederman said yesterday that Giuliani's impending deposition was the
highlight of his "eight-year campaign to expose him and his violations of
the Constitution."
He filed a suit in Manhattan federal court in 1998.
----------------
ALSO see:
NY Times 7/10/03 Veterans, Vendors and Beaten Paths
Daily News 5/10/03 City gags on vendor tax bills
NY Post 5/10/03 'DEADBEAT' PRETZEL TWIST
NY Times 9/4/02 Commerce Rushes in Where Art Once Ruled
Newsday 5/20/02 Street Artists Refuse to Be Curbed
NY Sun 1/8/03 To Vend Or Not To Vend
NY Sun 12/24/02 City Is Planning New Rules For Vendors
NY Sun Editorial 8/15/02Paranoid Protesting
NY Sun 8/14/02 Parks Commissioner Planning a Crackdown On Venders of Artwork
NY Times 8/11/01 Judge Bars Permit Requirement for Art Vendors
NY Post 8/11/2001Court: Permit Art Without Permit
Newsday 8/11/2001 Judge: Street artists no longer have to buy vendor permits
Newsday 1/28/03 Selling Art In Parks At Issue
OUR TOWN 2/13/03 City May Subject Park Artists to Permit System, Many cite
First Amendment violations
NY Sun 1/28/03 Venders Protest City Plan To Require Park Permits
Newsday 1/22/03 Putting Burgers Before Art Parks Commissioner Wants Artists
Out, Fast Food In
NY Newsday Jan 20, 2003 Wendy's Plan Makes Park A Garden of Eatin'; Fast
food on public property
New York Sun 9/24/02 ARTISTS GAIN STRENGTH IN FIGHT WITH MAYOR
Newsday 8/15/02 Mayor's Bill Is Last Draw For Artists
Newsday 3/2/98 Objections D' Art
Newsday 2/26/98 Artistic Licenses
NY Times 3/2/98 Artists Arrested in a Rally Opposing Permits
NY Times 3/22/98 War of the Paintbrushes
NY Times editorial 8/20/01New York's Art Wars Continue
NY Times editorial The Fight Over Street Art 3/4/98
NY Post editorial 5/17/98 The ARTIST Hustle
N.Y. Post editorial 8/20/98 Free Speech Or Free Exhibition Space?
NY Post editorial 6/16/98 Demonizing Rudy Giuliani
Christian Science Monitor 7/14/94 New York Reins In Street Art
Christian Science Monitor 2/14/96 Conflict on the Street: Artists v. N.Y.C.
Washington Post 3/20/2000 Speech Activist 2; Capitol Police 0
Washington Post 6/1/2002 Capitol Ban on Protests Nullified Court Opens
Sidewalk To Demonstrators
[Ruling: Robert Lederman v. United States]
NY Daily News 4/12/2002 Peddlers Take Stand Vs. Cops for Art's Sake
Newsday 12/19/99 A Thorn in the Mayor's Side
Village Voice 4/2/03 Pro-War Media Conglomerate Tries to Take Over New York
NY Observer NY 3/31/03 Will Parks Department Once Again Regulate Art
Vendors?
Village Voice 3/12/03 Christo Challenges Bloomberg on Art in the Parks;
Closing 'The Gates' to Intro #160
Newsday 1/28/03 Selling Art In Parks At Issue
NY Times 8/17/01PUBLIC LIVES End Draws Near for Mayor's Artful Adversary
"Chronic Offender", Village Voice 2/24/98; Newsday 4/20/98 cover story
"Under Giuliani City Has Repeatedly Stifled Dissent"; N.Y. Times 5/7/98 pg
B4 "For Giuliani, A Different Big Picture"; Editorial: "the Big Chill" by
Bob Herbert NY Times 5/31/98.; NY Times 6/2/98 "Vending Ban Widens: not Just
Food But also Books and Art".
This ruling will also directly affect Intro # 160.....
NY Times January 28, 2003, Tuesday
METROPOLITAN DESK
Metro Briefing | New York: Manhattan: Park Vendor Permits Are Protested
By Jennifer Steinhauer (NYT) (Compiled by Anthony Ramirez)
The City Council chamber was filled yesterday with artists and others who
oppose a bill that would require vendors of written materials in city parks
to obtain a permit. The bill, requested by Mayor Michael R. Bloomberg, would
authorize the Parks Department to regulate the time, place and manner of the
selling of written material, including art, in all city parks. In testimony
yesterday, the parks commissioner, Adrian Benepe, recommended that a lottery
be used to determine vending spaces and that artists pay a fee, like $25, to
sell their goods. Jennifer Steinhauer (NYT)
ARTIST POWER!
NEXT STORY >>
http://www.nynewsday.com/news/local/manhattan/nyc-vend0716,0,6416886.story?c
oll=nyc-manheadlines-manhattan
NY Newsday 7/16/03
Cops: Street Vendors May Multiply
Lapsed Legal Restrictions May Open Loophole
By Rocco Parascandola Staff Writer
July 15, 2003, 11:56 PM EDT
The Police Department issued an order Tuesday reminding officers that they
can no longer enforce newly lapsed legal restrictions prescribing where
street vendors who are disabled military veterans can sell their wares.
The administrative code that regulated their vending locations as well as
the size of their sidewalk displays expired March 1, and the state
legislature adjourned without extending the law, so there is no longer a law
for police to enforce concerning disabled veteran vendors.
"This is a challenge for the city, and we hope the legislature will address
it at its earliest convenience," said Edward Skyler, spokesman for Mayor
Michael Bloomberg.
The concern, said Paul Browne, the NYPD's deputy commissioner of
administration, is that disabled veterans can now set up shop virtually
anywhere and that vendors of materials of art and books protected by the
First Amendment are likely to follow.
"Where there was an expectation of no vending or little vending, people are
going to see a lot more of it," said Browne. "Now, we have to tell police
officers they no longer have the authority to enforce the regulations."
City officials estimate there are 10,000 vendors of all kinds citywide.
Browne said about 360 of them are disabled veterans, many working in midtown
Manhattan.
Enforcement has generally been the strictest in midtown, where complaints
from merchants, who view street vendors as low-cost competitors, is common.
Vendors of art and written materials, unlike other vendors, are not required
to obtain city permits, due to freedom of expression protections in the U.S.
Constitution. Tuesday, a federal appeals court upheld that protection,
handing a victory to Robert Lederman and other artists who had sued the
former Giuliani administration over its arrest of sidewalk art vendors in
Manhattan.
Technically, a special legislative session could be called to renew the
disabled veterans vending law. While it was not immediately clear why the
law wasn't extended, Browne said the city expects renewal to occur. The
legislature is not scheduled to meet again until January 2004.
He also said that while there was no evidence to suggest vendors were
capitalizing on the current legal vacuum, police could still take action if
pedestrian safety was compromised by vendors who took up too much space on a
sidewalk.
MSNBC
http://www.msnbc.com/local/wnbc/a1698797.asp?cp1=1
Rules For Street Vendors To Loosen Up
NEW YORK, 10:44 p.m. EDT July 15, 2003 - A New York state law that expired
had limited the number of disabled veterans allowed to sell their goods in
Midtown Manhattan. As a result, the police department sent out a notice to
cops that their ability to enforce some restrictions is now gone.
It's not just disabled veterans who can now set up shop on almost any
street. With the law expired, First Amendment peddlers, which includes
artists and booksellers, can set up alongside anywhere a disabled veteran
has set up a table.
The loosening of these rules comes on the heels of a federal appeals court
decision that ruled against the city on the issue of permits for artists.
New York City still has restrictions in place limiting vendors' table size
and placement. For example, a vendor's place must be 20 feet from a doorway
and be on a sidewalk at least 12 feet wide. There are still some all-out
bans on some major Midtown avenues.
But the New York Police Department says the result will be that disabled
veteran vendors may now exceed the usual size dimensions of their displays
and are permitted to operate on any street in the city. Also First Amendment
vendors who sell printed material or art may co-locate on the same
sidewalks, according to police.