The Street Artists’ Case

By Yeonhwa Lee

Yeonhwa Lee is a senior at the University of Pennsylvania studying Philosophy, Politics, and Economics (PPE). 

The Supreme Court decided not to hear the case petitioned by Robert Lederman, artist-activist and president of Artists' Response To Illegal State Tactics (ARTIST). The petition, submitted on December 23 last year, asked the Court to reverse the Second Circuit Court of Appeals’ decision which sided with the City of New York and its revised regulations regarding expressive-matter vendors in public spaces. 

On September 25, 2013, the Second Circuit upheld the City’s revised rules on unlawful vending of expressive matter. Following the revisions made in 2010, Section 1-02 of Title 56 of the Rules of the City of New York (R.C.N.Y.) was amended to include the definition of expressive matter – “materials or objects with expressive content, such as newspapers, books, or writings, or visual art such as paintings, prints, photography, or sculpture.” [1] And more importantly for street artists, Section 1-05 banned expressive-matter vendors from selling their works in the general areas of Central Park, Battery Park, Union Square Park, and elevated portions of High Line Park, except at specifically designated spots. [2] 

Lederman and other visual artists protested the revisions, invoking their First Amendment right to freedom of expression. They also argue that the revisions violate the equal protection clause of the Fourteenth Amendment; buskers do not face as limiting a restriction as do expressive-matter vendors. [3]

On September 12, 2012, the District Court dismissed the complaint by Lederman and held that the rules did not violate the First Amendment. Lederman appealed. On September 25, 2013, the Second Circuit decided that “expressive matter sold in public places is entitled to full First Amendment protection” but that “the government may impose reasonable content-neutral restrictions on time, place, or manner of protected speech.” The artists had insisted that the restrictions were content-based and lacking proper justification. [4]

Content-neutrality, as posited by the Supreme Court, boils down to a single question: Has “the government adopted a regulation of speech because of [agreement or] disagreement with the message it conveys?” [5] If the law at hand does not refer to the ideas of the speech, it is deemed content-neutral. While the City of New York is not concerned with the views expressed by the artists in their art, the regulations do limit their speech.

Ken Paulson, dean of the College of Mass Communication at Middle Tennessee State University and director of the First Amendment Center, said in an interview with Newsweek that communicating ideas to people inherently requires doing so in heavily trafficked areas and that “limiting the sale and exhibition of art in these locations … largely [negates] the impact of speech.” [6] Do the regulations effectively guarantee artists’ freedom of speech only in places where they will be heard less?

On the other hand, if the law at hand is “narrowly tailored to serve a significant government interest,” the courts usually acknowledge its constitutionality. Indeed, the Second Circuit recognized that the City had a valid interest in preventing congestion in popular parks by clearing sidewalks of vendors. Paulson admitted, “We all have a right to march down the street and protest. We don't necessarily have a right to do it on Broadway at high noon because of the traffic ramifications." [7] The issue may be whether the regulations are “narrowly tailored” enough to both achieve the desired effect in terms of public utility and safeguard the artists’ First Amendment rights. The courts seem to agree that they are.

Lederman petitioned the Supreme Court on the grounds of unconstitutionality of the revisions and the clash between the Second Circuit’s decision with those of other circuits, pointing to the need for a consistent precedent across the country. [8] To this, the City responded with a brief of opposition, holding that the Second Circuit’s decision was legally correct and consistent with the opinions of other circuits. It also maintained that the Constitution did not necessarily guarantee the best freedom of speech: “while ample alternatives must be available, speakers are not guaranteed 'access to every or even the best channels or locations for their expression.'” [9]

Lederman’s team is contemplating their next step. Lederman claims in his recent petition to Mayor Bill de Blasio that the public places previously occupied by artists have been “bid out to corporations for the purpose of promoting their products and services,” resulting in approximately 1,000 corporate concessions in public parks of the City. [10] He argues that these obstruct the view of monuments and detract from the park users’ experience. Whether Mayor de Blasio will lend the artists his attention is uncertain.

In the meantime, if you are going to Central Park to get your dose of New York City street art, consult Title 56 of the R.C.N.Y. for where you won’t find any vendors.

[1] Department of Parks and Recreation, the City of New York. “Notice of Opportunity to Comment on Proposed Rule.” <http://graphics8.nytimes.com/packages/pdf/nyregion/2010/031910_VENDING.pdf>
[2] “§ Section 1-05: Regulated Uses.” NYC Rules. <https://rules.cityofnewyork.us/content/section-1-05-regulated-uses>
[3] Bekiempis, Victoria. “New York City’s War On Artists.” Newsweek. Newsweek.com, 6 Dec. 2012. Web. 23 Mar. 2014. <http://mag.newsweek.com/2013/12/06/new-york-city-s-war-artists.html>
[4] “Lederman v. New York City Department of Parks and Recreation.” Findlaw.com, Web. 23 Mar. 2014. <http://caselaw.findlaw.com/us-2nd-circuit/1644994.html>
[5] Ibid.
[6] Bekiempis, Victoria. “New York City’s War On Artists.” Newsweek. Newsweek.com, 6 Dec. 2012. Web. 23 Mar. 2014. <http://mag.newsweek.com/2013/12/06/new-york-city-s-war-artists.html>
[7] Ibid.
[8] Bekiempis, Victoria. “New York’s Artists Take Their Case to the Supreme Court.” Newsweek. Newsweek.com, 27 Dec. 2013. Web. 23 Mar. 2014. <http://www.newsweek.com/new-yorks-artists-take-their-case-supreme-court-225190>
[9] Bekiempis, Victoria. “New York City Tries to Block Street Artists’ Petition to Supreme Court.” Newsweek. Newsweek.com, 3 Feb. 2014. Web. 23 Mar. 2014. <http://www.newsweek.com/new-york-city-tries-block-street-artists-petition-supreme-court-227763>
[10] Lederman, Robert. “Letter to NYC Mayor Bill de Blasio.” Web. 23 Mar. 2014. <http://www.scribd.com/doc/211040164/Letter-to-NYC-Mayor-Bill-de-Blasio> 

Photo Credit: Flickr user baddogwhiskas