Appeal Is a Washout for NYC Street Art Activist
MANHATTAN (CN) - A New York City street artist known for fighting restrictions regarding how to display and sell his work lost a fight Wednesday in the 2nd Circuit, where decades earlier he had licensing requirements declared unconstitutional.
Robert Lederman, the founder of Artists' Resistance to Illegal State Tactics (ARTIST), said one year ago police arrested him 44 times for challenging policies he calls unconstitutional.
Prosecutors have allegedly never been able to convict him. In a challenge to former Mayor Rudolph Giuliani's "quality of life" campaign, for example, Lederman once won the right to hawk art on the steps of the Capitol Building without a permit.
Lederman and his colleague Jack Nesbitt also filed a lawsuit in 2010 that claimed New York City had "waged a counter-movement to quash" the advances they had made in their First Amendment battles.
The suit accused New York City of showing favor to city-sanctioned vendors around Central Park, the Union Square Greenmarket, and Holiday Markets at Columbus Circle and Union Square.
They claimed that this practice defied the 2nd Circuit's 1997 holding in Bery v. City of New York, finding licensing requirements for art vendors unconstitutional. Lederman was a co-plaintiff in that landmark case.
His luck turned late last year, when U.S. District Judge Richard Sullivan dismissed his most recent lawsuit. The ruling stated that Lederman and Nesbitt's speech rights had to be balance with "myriad other demands on municipal resources."
At the time, his lawyer Julie Milner said she was "stunned" with the ruling and planned to appeal.
A three-judge panel of the 2nd Circuit affirmed the dismissal of his case Wednesday.
"The city's interests here - alleviating congestion and improving circulation, promoting the aesthetics of the parks, and ensuring that the parks are available to the public for a wide range of activities - are indisputably significant," Judge Denny Chin wrote for the court. "The regulations are narrowly tailored because the city imposed spot designations only in the most heavily used areas, while leaving all remaining park areas open for vending. ... Moreover, the regulations allocate spot designations on a first-come, first-served basis without reference to the ideas or views expressed in the materials in question."
Chin added that the lower court was right not to force New York City Mayor Michael Bloomberg's deputy to testify in the case. The artists' case did not involve the "exceptionally high circumstances" needed to grill a high-ranking government official, according to the 11-page order.
Milner, the Elmhurst, N.Y.-based attorney for Lederman, said she make seek review from the Supreme Court.
"We are stunned that our esteemed panel in the Second Circuit did not agree with us that the city's interests were pretextual and that the revised rules were designed to foreclose the parks to artists," Milner said in an email.
"In the meantime, I don't believe this matter is resolved as to the applicability of the rules to performers in the parks," she added. "I anticipate other suits being filed by attorneys representing performers."
Julie Steiner, a senior counsel with the New York City Law Department's Appeals Division, said she was "very pleased" that the district and appellate courts agreed that the regulations were "completely lawful and appropriate."
"As we argued and the Second Circuit agreed, the city's interests in alleviating congestion, promoting parks' aesthetics, and keeping park space available to the public are indisputably significant reasons for the regulations," Steiner said.