Conflict on the Street: Artists V. N.Y.C. Do First Amendment Protections of Free Speech Extend to Vendors of Visual Art? A Lively Debate Continues in Federal Court

By Nicole Gaouette, Monitor | The Christian Science Monitor, February 14, 1996 | Go to article overview

Conflict on the Street: Artists V. N.Y.C. Do First Amendment Protections of Free Speech Extend to Vendors of Visual Art? A Lively Debate Continues in Federal Court


Nicole Gaouette, Monitor, The Christian Science Monitor


ARTIST Robert Lederman has been arrested so many times he knows the routine better than some of the police. So when eight plainclothes police confiscated a fellow artist's etchings from a sidewalk display here in SoHo recently, Mr. Lederman could tell the police exactly what they were doing wrong.

"They weren't arresting him, they weren't giving him a ticket, they weren't even giving him a voucher for his art," Lederman remembers. "Never mind the First Amendment issues, that's just stealing."

The First Amendment is at the heart of a dispute between a group of artists who sell their works on the street and New York City, which is trying to control street vending. Under the city's current laws, artists face a Catch-22: They can be arrested for selling without a license, but licenses are virtually impossible to get. That conflict has led to a federal court case focusing on the question of whether the First Amendment protections that cover free speech extend to visual art.

In the first round of the case, which is now under appeal, the answer was no. Judge Miriam Cederbaum, the district court judge who heard Lederman v. City of New York, disagreed with the artists' claim to First Amendment protection.

In her ruling, Judge Cederbaum wrote that "written matter is the heartland of the First Amendment," and that the "plaintiff's art does not carry either words or the particularized social and political messages upon which the First Amendment places special value."

The decision has drawn a full palette of criticism. "It seems absurd that this is even an issue," says David A. Ross, director of the Whitney Museum of American Art here. "We stand firmly behind the idea that art is equal to other forms of expression and is as protected as speech."

Mr. Ross is one of a list of art-world figures, among them Claes Oldenburg, Chuck Close, Jenny Holzer, and the Museum of Modern Art, who have pledged support for the street artists.

Gloria Phares, a lawyer who worked on the case through the group Volunteer Lawyers for the Arts, says the decision was surprising.

"It seems a little out of step with trends in First Amendment law," she says. "To say you protect writing but not visual expression is like saying you protect writing in English but not in Spanish - conceptually there's no difference, it's simply a matter of vocabulary."

First Amendment attorney Floyd Abrams says the First Amendment has always protected artistic endeavors as well as political ones. "Those protections are not limited to written works," he says. "Dance is protected, art; painting itself has been held protected."

The city's position is that the vending license requirements don't violate First Amendment rights, according to its attorney Robin Binder.

"We're not saying the First Amendment doesn't apply directly to art," she says. "We're saying it doesn't apply to sales of art."

Randall Fox, one of two attorneys representing the artists pro bono, disagrees. "There's a long line of Supreme Court cases that indicate the dissemination of protected material is as protected as the actual material itself," Mr. Fox says, citing newspaper vending boxes as an example.

"Right now, the end result of the city's licensing policy is an effective ban on the sale of original art works on the public streets of New York City," Fox says.

Vendors selling books, magazines, newspapers, or pamphlets can sell without a license anywhere vending is permitted. …

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