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---------- Forwarded message ----------
Date: 2 Nov 1995 09:04:22 -0500
From: ARTISTpres <artistpres@aol.com>
To: bit-listserv-devmedia@uunet.uu.net
Subject: Judge rules art not protected by 1st. Amend.

Attention assignment desk: For immediate release 10/31/95

Art Judge Rules Against Artists: Art Not Protected by First Amendment

Is a picture worth a thousand words? Not according to Federal Judge Miriam
Cedarbaum. The judge has just handed down a ruling denying a request by
plaintiffs from A.R.T.I.S.T. (Artists' Response To Illegal State Tactics)
for a preliminary injunction. The injunction sought to protect artists
who've been arrested and had their original art confiscated and destroyed
by the police while displaying it on New York City streets. The ruling
claims New York City is justified in prohibiting artists' displays in the
interests of, "...preventing congestion", because artists are not fully
protected by the First Amendment, regardless of there being, "...some
expressive content in works of fine art." Artists expect the ruling to
give the police a green light to begin a new wave of arrests. Since 1993,
over 200 fine artists have been handcuffed and arrested and had their
paintings, prints, sculptures and photographs confiscated by the N.Y.P.D.
which sells the art at a monthly auction.

The ruling finds the City's often criticized vending license scheme
constitutional as applied to artists, despite City official admitting
there are no licenses for artists. For many years the Department of
Consumer Affairs, which issues all vending licenses, told artists applying
for one that they were "...protected by the First Amendment and didn't
need a license to sell their own art".

According to this new ruling, First Amendment rights now appear to be
limited to written or printed materials, audible speech or in some
instances, paintings that contain words or have an overt political
message. "Plaintiffs' art does not carry either words or the
particularized social and political messages upon which the First
Amendment places special value", the judge writes. This appears to
contradict various Supreme Court rulings including a recent decision
[Hurley v.Irish-American Gay and Lesbian Bisexual Group, No. 94-749, 1995
WL 360192 (S. Ct. June 19, 1995)] in which the Court made it clear that
visual art, even art with no obvious political message, is fully protected
by the First Amendment. In that ruling the Supreme Court stated, "...a
narrow, succinctly articulable message is not a condition of
constitutional protection, which if confined to expressions conveying a
"particularized message"... would never reach the unquestionably shielded
painting of Jackson Pollack, music of Arnold Schonberg or Jabberwocky
verse of Lewis Carroll".

Though the judge never viewed any of the paintings in question, the 17
page ruling repeatedly points to a lack of political content in the
artist/plaintiffs' works in order to explain why their art is not
protected expression. In light of the Supreme Court having accepted such
expressive forms as films, topless dancing and unusual hairstyles as being
protected forms of speech, it is difficult to reconcile this narrow view
with previous First Amendment law or art history. The works of fine
artists are traditionally seen to contain implicit political and social
meaning, and to be a medium for communicating the artists' ideas, beliefs
and opinions.

The ruling also denied that the City violated the artists' Fourteenth
Amendment right to equal protection under the law, despite the vending
ordinance exempting an unlimited number of vendors of written or printed
matter from needing a license. "Such written matter is the heartland of
the First Amendment. Because art is farther from the core than the written
word, the City's decision to exempt sellers of written matter cannot be
seen as irrational", she writes. Based on this new ruling, a sidewalk
vendor of art books, used magazines or baseball cards is expressing a
First Amendment right, while an artist selling a painting created to
express his or her own ideas, is not. Legal, cultural and arts
organizations are now expected to join in the case by filing amicus briefs
for an appeal challenging the ruling.

"This decision threatens the constitutional rights of all artists", said
one of the plaintiffs in the case and president of A.R.T.I.S.T., Robert
Lederman. Lederman has been arrested 10 times for displaying his art on
the street. "Art is a universal form of speech, information and expression
pre-dating any written or spoken languages. When the City of New York
demands an unavailable license from artists, and then arrests them for not
having it, they are deliberately and knowingly violating the Constitution.
In the American city claiming to be the arts capitol of the world and a
stronghold of free speech, why are artists being arbitrarily and
irrationally excluded from the public forum of the street, and from
Constitutional protection?"

Lederman and the other plaintiffs represented by Dewey Ballantine and
Volunteer Lawyers For The Arts met this week and decided to immediately
appeal the decision. In the meantime they will continue to sell their art
on the street. "This ruling makes me want to go out and show my art more
than ever", said artist Jodi Bogus, another plaintiff in the case. For
more information contact: Robert Lederman (718) 369-2111 E-mail to:
[ARTISTpres@aol.com] Randall Fox (Dewey Ballantine) (212) 259-8000 / Dan
Mayer (Exec. Dir.Volunteer Lawyers For The Arts) (212) 319-2787 Photos and
videos of artist arrests and demonstrations are available. Feel free to
publish, post or use this release.