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Tuesday, May 21, 2024 | Back issues
Courthouse News Service Courthouse News Service

NYC Art Activists Must Find New Vending Turf

MANHATTAN (CN) - A federal judge dealt a rare defeat to two artists known for their regular legal battles to keep the police from shooing vendors off public sidewalks.

One of the plaintiffs, Robert Lederman, founded Artists' Resistance to Illegal State Tactics, or ARTIST. He says police arrested him 44 times for challenging policies he calls unconstitutional, but prosecutors have never been able to convict him.

Lederman also claims credit for successfully challenging former Mayor Rudolph Giuliani's "quality of life" campaign and winning the right to hawk art on the steps of the Capitol Building without a permit.

In mid-2010, Lederman and his colleague, Jack Nesbitt, filed a lawsuit claiming New York City "waged a counter movement to quash" the advances they had made in their First Amendment battles.

In particular, the suit accused New York City of defying the 2nd Circuit's holding in Bery v. City of New York in 1997, finding licensing requirements for art vendors unconstitutional.

Despite this decision, Mayor Michael Bloomberg pushed artists out of public areas to make way for his corporate "friends" and city-sanctioned vendors at the Union Square Greenmarket and Holiday Markets at Columbus Circle and Union Square, the artists claimed.

The suit also lambasted Bloomberg's public art initiatives, "The Gates" ("monstrosities," the suit alleges), and "NYC Waterfalls" ("four hideous metallic structures that wasted energy from 7 a.m. to 10 p.m.," it stated).

On Monday, U.S. District Judge Richard Sullivan tossed Lederman and Nesbitt's claims without commenting on their art criticism.

"Plaintiffs have made a practice of contesting any attempt to limit their ability to display and sell their art whenever and however they please," Sullivan wrote in a 17-page order. "However, the Constitution recognizes that the city must be permitted to balance plaintiffs' speech rights with other myriad demands on municipal resources."

The artists hoped to block revisions of Parks Department rules allowing them to regulate busy stretches of sidewalk, narrow pathways or areas near benches.

Police cited these new rules when they arrested the artists near the Metropolitan Museum of Art on Central Park East, where the Strand bookstore permanently sets up shop.

Although the artists say the regulations unfairly single them out, Judge Sullivan noted that the city sought public input from hundreds of residents before agreeing on a "narrowly tailored" regulation.

But the artists' lawyer, Julie Milner, told Courthouse News that Sullivan made a fateful omission.

"What the judge failed to mention in the decision is that the comments were overwhelmingly on the side of the artists," she said.

She added that the written comments favoring the city's position came from a petition circulated by Jennifer Falk, the executive director of the Union Square Partnership that benefited from the restrictions.

Nevertheless, the judge argued that Lederman and Nesbitt could find lots of other public turf to hawk their art.

"Although vending is not permitted everywhere - such as on grassy areas, in close proximity to park benches, or on pathways that provide less than a twelve-foot wide clear pedestrian path - a significant amount of the Parks Department's 2,700 acres of parkland in Manhattan is available to expressive matter vendors," the order states.

The artists dismissed this statistic as a "linguistic trick" because they say that only a sliver of parkland includes wide pathways without benches.

The judge called this critique a "slender reed" because the Central Park Mall, the path to the Wollman Rink and "public sidewalks throughout the city" remain open to venders.

"It is thus beyond debate that the city 'enjoys a substantial interest in ensuring the ability of its citizens practice to enjoy whatever benefits the city parks have to offer,'" Sullivan wrote. "Because the city has established that unbounded vending would squelch a range of those benefits, and has responded with narrow, targeted regulations that leave plaintiffs ample opportunity to exercise their rights, defendants' motion for summary judgment is granted."

City lawyer Sheryl Neufeld said she was "pleased" that the court balanced "the interests of expressive matter vendors and the public."

"Park amenities are limited and cannot be overrun by the demands of one group," Neufeld said. "As the Court found, the City's rules leave expressive matter vendors 'ample opportunity' to express their rights, while allowing the public to use and enjoy park amenities."

Milner said she was "stunned with the ruling" and planned to appeal.

"We think that we submitted copious evidence in our favor," she said. "Hopefully, we can get artists back into the parks."

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