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Street Artists Win 2ND Major Federal Appeals Court Ruling July 15, 2003

Robert Lederman, President ARTIST (Artists' Response To Illegal State Tactics)

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 ARTIST 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 its 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

Also located at:

http://csmail.law.pace.edu/lawlib/legal/us-legal/judiciary/second-circuit/test 3/95-9089.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."

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