File spoon-archives/avant-garde.archive/avant-garde_1996/96-11-03.013, message 76

Date: Wed, 16 Oct 1996 09:29:44 -0700 (PDT)
Subject: N.Y.C. Street Artists Win Federal Suit (fwd)

Subject: N.Y.C. Street Artists Win Federal Suit

 The 2nd. Circuit Federal Appeals court just issued its
ruling in Lederman v. City of New York 94 civ. 7216 (MGC).
The three judge panel completely reversed Judge Miriam
Cedarbaum's ruling issue on 10/25/95. Her ruling denied art
First Amendment protection and affirmed N.Y.C.'s right to
arrest street artists and confiscate their paintings,
photographs, prints and sculptures. since 1993 more than 350
artists have been arrested although not one case was ever
brought to trial.

The Appeals court affirmed that:
1. the plaintiffs (five N.Y.C. street artists) did in fact
demonstrate a liklihood of sucess on the merits.
2. They write, "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
mispercieves the essence of visual communication and
artistic expression".
3. The Appeals court affirmed that "...the sale of
plaintiffs art is also protected" and that the marketing of
plaintiffs art on the street,"... is in fact a part of the
message of appelant's art".
4. "Appelant's art is entitled to full First amendment
5. "The city points to nothing concerning its need to ensure
street safety and lack of congestion that would justify the
imposition of barring the display and sale of visual art on
the city streets".
6. "Displaying art on the street reaches people who might
not chose to go into a gallery or museum or who might feel
excluded or alienated from these forms".
Robert Lederman, the president of A.R.T.I.S.T. and main
plaintiff in the case issued this statement.

"The Federal appeals court has justified our faith in the
U.S. Court system. This ruling affirms not only the First
Amendment rights of street artists, but the right of every
person in this country to view art without unnecessary
interference from the government or attempts to "abridge
speech". We hope that now the City of New York can return to
being the art capitol of the world rather than the artist
arrest capitol and that street artists can be recognized for
improving the citys quality of life by displaying and
selling their art."

For more information contact: Robert Lederman, president of
A.R.T.I.S.T. at (718) 369-2111 or write : 255 13 St.
Brooklyn N.Y. 11215  [E-mail:] Visit the
A.R.T.I.S.T. web site at:
Lawyers for Lederman plaintiffs Randall Fox, Wayne Cross of
Dewey Ballantine 212 259-6968


Street Artists Win 1st Amendment Rights in Fed.

(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. [FN1]
Robert Lederman et al. v. City of New York (94 Civ.
The following are selected quotes from the street artist

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.
[FN3]  Indeed, written language is far more
constricting because of its many variants--English,
Japanese, Arabic, Hebrew, Wolof, [FN4] Guarani,
[FN5] 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 short cut
>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. [FN7]

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'

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.

*10 Accordingly, the judgment of the district court is

               What Does The Street Artist Decision Mean?
                            by Robert Lederman

On 10/10/96 the 2nd Circuit Federal Appeals Court
totally affirmed the position of A.R.T.I.S.T. on free
speech. The court ruled that visual art is equal to
written expression as a form of "speech"; that artists
can sell their art on the street as well as display it;
that they need no license or permit to do so; and that
the public has its own First Amendment right to view
and buy art on the street as an alternative to galleries
and museums.

The ruling was hailed by constitutional authorities as
one of the most sweeping First Amendment decisions
in American history. This decision will guarantee
First Amendment protection for artists, art dealers,
museums, film makers etc. for generations to come.

To those who helped us win this victory I offer my
heartfelt gratitude. This ruling did not take place in a
vacuum. Our demonstrations, the hundreds of
thousands of leaflets we distributed, our mailings to
the media, elected officials and art world luminaries,
our refusal to plead guilty in criminal court, and our
insistence that we had this constitutional right were all
part of making this court decision possible. We also
have many attorneys, museum directors, famous
artists, media people and community residents and
businesses who supported us to thank.

To those who opposed our efforts and tried to
convince artists that we had no First Amendment right
to sell our art on the street; to those who called the
police and had artists arrested; to those who criticized
our group's tactics and expressed only pessimism
about our chances for success... I offer you the olive
branch of peace. This victory is ultimately everyone's
victory. By affirming the First Amendment rights of
street artists the court strengthened the speech rights
of every person in this nation. We all benefit from this
decision. Now is the time to put aside past animosity
and look to the future.

This decision does not mean artists can do anything
they like on the street. The ruling states that artists
must obey reasonable rules as to where and how they
can display their art. As we've said from the
beginning, this right to display and sell our art
involves using public property, specifically public
sidewalks and parks. The ruling does not mean artists
can use private property such as walls and store
windows without permission from the owner. It also
means that the city can enforce reasonable rules as to
how large an art display can be and concerning other
factors that affect public safety and sidewalk

I urge artists to immediately and voluntarily comply
with the existing rules concerning size and placement
on the street. If you've read our literature during the
past three years you should be familiar with these

During this transitional period everyone will be
watching how we handle our new freedom. If we
abuse it, a backlash of bad feeling towards street
artists will result and our opponents will have the
ammunition to begin a whole new cycle of oppression
and restriction. If we use our freedom wisely and
appropriately, we can expand upon and enjoy the hard
won fruits of our struggle.

I also ask those artists who've worked on the street
for years to be tolerant of new artists just coming out.
Rather than viewing them as taking something from
you (space, business etc.) try to see them as members
of a family.

We did not fight this battle just for ourselves, our
personal friends or members of one group. First
Amendment freedom exists the moment a person steps
foot on American soil. Neither citizenship, race,
nationality, religion, skill as an artist or seniority on
the street gives one person a greater right than
another. Use your understanding of this group's
history and what it stands for to educate new artists
coming to the street as a result of our victory. Explain
what is allowed and why. Be patient if they don't
immediately understand "the rules". Please don't
invent imaginary "rules" such as, "I've been here for
3 years; this is MY spot". On public property, no one
owns a spot.

According to newspaper reports, the city is
"considering" an appeal. This is highly unlikely. The
2nd circuit Appeals Court is extremely influential,
especially on First Amendment matters. To appeal this
decision the city has 30 days to apply to the U.S.
Supreme Court. That court gets 80-90,000 request
each year. It only accepts 80-90 cases.  The Supreme
Court would have to undermine hundreds of previous
rulings to reverse our decision. This decision will

Please take the time to accurately understand this
ruling and explain it to the police, residents and
businesses where you sell. It's important that they
don't mistakenly believe artists will now go wild and
abuse our newly won freedom. Let them know we
want to cooperate with them to keep the streets safe
and orderly while making New York once again the art
and free speech capital of the world.

For more information on A.R.T.I.S.T. call:
Robert Lederman  (718) 369-2111 E-mail  A.R.T.I.S.T. web site at:

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