File spoon-archives/avant-garde.archive/avant-garde_1996/96-11-03.013, message 104

Date: Mon, 21 Oct 1996 09:30:19 -0700 (PDT)
Subject: NYC: Opponents of Sidewalk Art Displays Not Ready to Concede Defeat and N.Y.C. Street Artists Win Federal Suit (fwd)

From: (Barry Goldstein)
Date: Wed, 16 Oct 1996 19:45:31 EDT

        As an attorney, I have followed the implementation of the First
Amendment to an ever increasing penumbra of protected rights. I was
disturbed by the inaccurate reporting of the "street" artists'
constitutional victory in the Second Circuit of Appeals.  The "sharply
worded opinion" is discussed on the first and third pages of the New York
Law Journal of October 15, 1996, in the article, "Ban on Street Art
Vendors Illegal."  The case is not entitled Lederman v. City of New York;
it must instead be cited as Bery v. City of New York.  As previously
reported in the New York Law Journal, The New York Times, and other
publications, plaintiff Robert Bery, initiated the constitutional
challenge in Criminal Court, New York County, represented by Carol
Novack, a solo practitioner in Manhattan.  Other artists, including
Lederman, soon became involved in related challenges.  Bery's case was
dismissed on First Amendment grounds, but only because his works were
deemed "political."

        Subsequently, there was a further challenge in the Southern
District Court instigated by Robert Bery and other artists several months
before Lederman and others filed an identical action, which was
consolidated with Bery's.  Carol Novack, 305 Broadway, NYC 10007
[212-227-0108] and Noah Kinigstein, 319 Broadway, NYC  10007
[212-285-9300] represented the Bery plaintiffs, as per the New York Law
Journal..  The District Court's decision, Bery v. City of New York, may
be found at 906 F. Supp. 163 (S.D.N.Y. 1995).

        The Second Circuit's ruling will have far-reaching effects, on a
national scale.  Although courts have long recognized that art is
protected by the First Amendment, some courts have suggested that art is
not "as" protected as the written word.  Bery v. New York is the first
federal appellate decision that has recognized unequivocally that art
deserves the same degree of protection as the written word, and that
government entities must afford artists public channels in which to

Subject: NYC: Opponents of Sidewalk Art Displays Not Ready to Concede Defeat

Date: Sat, 19 Oct 1996 14:29:34 -0400
Subject: Real Estate interests to appeal Street Art Decision

For Immediate Release:
Opponents of Sidewalk Art Displays Not
Ready to Concede Defeat

Despite a unanimous 2nd circuit Federal Appeals
Court ruling in favor of the street artist plaintiffs, real
estate interests behind N.Y.C.'s more than 350 artist
arrests are still denying that artists have First
Amendment rights on public property and claim they
will appeal the decision to the U.S. Supreme Court.
[Robert Lederman et al. v. City of New York (94 Civ.
7216). Cite as: 1996 WL 580938 (2nd Cir.(N.Y.)Nos.
1620, 1621, 1782, Docket 95-9089(L), 95-9131,
96-7137. United States Court of Appeals, Second
Circuit. Argued April 26, 1996. Decided Oct. 10,
Circuit Judges, and CARTER, District Judge.

The lead editorial in the 10/19/96 N.Y. Times
suggests that, "...a deluge of vendors" will be
descending on N.Y.C. streets as a result of this ruling
and points to the Giuliani administration's forcible
removal of Harlems' street vendors to an empty lot as
a "solution" that would apply to First Amendment
protected artists as well. A.R.T.I.S.T. president and
lead plaintiff in the street art case, Robert Lederman,
has called this forced removal to a vacant lot,
"ghettoization". He also said, "The ruling specifically
indicated that paintings, photographs, limited-edition
prints and sculptures were protected as compared to
jewelry and crafts. This ruling will not lead to an
increase in general vending". Lederman is still
scheduled for a trial on three of his 13 art related
arrests in Manhattan Criminal Court on 10/25 [Jury
Part 4].

On Good Morning America [10/14/96] Shelly
Friedman, an attorney speaking on behalf of The SoHo
Alliance, City Council Member Kathryn Freed, the
Fifth Avenue Association, the Madison Avenue B.I.D.
and other real estate interests claimed that artists do
not have a First Amendment right to sell their art on
the street, despite the Appeals court ruling. Friedman
said this case is not about free speech at all but is
simply about money. The anti-art brief Friedman and
the real estate groups previously submitted in Federal
Court [95-9089] stated: "The sale of artwork does not
involve communication of thoughts or ideas" and
warns of, "the dangers...of allowing visual art full
First Amendment protection". It goes 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..."

In the 10/16/96 issue of The Villager, Council
Member Freed, who police officials have pointed to as
a prime source of pressure to arrest artists, is quoted
as saying she will, "...reintroduce legislation that
would set up a committee to certify artists". Her
committee would determine which of a handful of
artists would be allowed to display or sell in one of a
few sequestered areas of the City, directly
contradicting the Appeals courts ruling that,"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.... 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

On 10/17 at the CB#2 public meeting at N.Y.U. Law
School Freed described her plan for SoHo's street
artists to be forced to set up in a narrow parking lot at
Houston and Broadway after passing her certification
process. Sidewalk art displays on streets would be
prohibited by her proposed legislation. Many of
Freed's long-time supporters in the SoHo Alliance
quit the group due to Freed's persecution of street
artists and formed a new organization, the SoHo
Community Council, which strongly supports artists'

Robert Lederman has asked all street artists to
voluntarily comply with the Vending Ordinance's size
and placement rules for sidewalk displays and to be
especially considerate of the rights of landlords,
storeowners and pedestrians during this time of
transition. In a brief statement he said; "This issue
always was, is and will continue to be about free
speech on public property, not about congestion. The
business and real estate interests that want the City to
appeal this decision are simply against the average
American using public property for expression. They
see the display of a painting, the sale of a book or
even the handing out of free literature as competition
for the publicly owned space they want to exert total
control over. These corporations have no hesitation
about destroying First Amendment freedom if it is
necessary to accomplish their aims. The sidewalk
traffic in front of Rockefeller Center, Trump Tower
or many of the Fifth Avenue Association's other
properties causes more congestion than all of the
City's sidewalk art displays combined."
For more information contact A.R.T.I.S.T. (Artists'
Response To Illegal State Tactics) 718 369-2111
 e-mail or visit our web site:
containing extensive quotes from the ruling and other
up to date information including contact numbers for
this issue. Council Member Freed 212 788-7722 SoHo
Alliance 212 353-8466 SoHo Community Council 212
Fifth Avenue Association 212 736-7900
N.Y.C.Corporation Counsel 212 788-0303

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