History:
In the 1990s, NYC had a permit system for selling art on the street. However, the permit system was poorly run and was limited to 800 permits. The city was sued in the mid 90s by artists comprising painters, photographers and sculptors.
The case eventually was heard by the Federal 2nd Circuit Court of Appeals and the citation is
BERY v. CITY OF NEW YORK III
97 F. 3d 689
http://caselaw.findlaw.com/us-2nd-circuit/1182584.html
As a result of this Federal decision, Street Artists now sell freely on the streets of New York. In 2007, David Marshall, Street Art vendor and recently-elected City Counselor, worked with others including the MCLU (now known as the ACLU/Maine) to encourage Portland to promulgate the Street Artist Regulations.This document, signed in 2009,and revised in 2011, states at
http://www.portlandmaine.gov/voter/streetartistrules.pdf
“1. A “street artist” is a person who is engaged in the creation of a work of art or who offers for sale a work of art created by the artist who is offering it for sale.”
“2. Works of art protected by the First Amendment and thus permitted to be sold by the artist without a permit in Portland include expressive items such as paintings, photographs, prints and sculptures. Performance art is also protected by the First Amendment.”
In grammar, and in law, the phrase SUCH AS is followed by examples. The examples that follow “such as” are only part of the entire set.
In grammar, and in law, the phrase LIMITED TO is an exclusionary phrase. The items that follow “limited to” are the whole of the set.
Logic tell us that “expressive items such as” indicates there are other forms of ART that could be given after the word “sculpture.”
Thus, the regulations do NOT define what ART is; it simply gives 4 examples of expressive ART that may be sold on the streets of Portland without a permit.
The city believes that there exists a Federal definition of art and that art is limited to paintings, photographs, prints and sculpture. The city spokeswoman said as much to the WMTW reporter July 20 after an earlier raid at Monument Square.
As I told the WMTW reporter at that time, the City had no right to exclude people from Monument Square in July because the City Street Artists Rules and Regulations do not say what is excluded from street sales.
Marc Rees, City Manager of Portland Maine, and Mary Costigan, Associate Legal Counsel of the City have stated that the City is using legal precedent to define what may be sold as art. The precedent Mary Costigan is following is the NYC case cited above (BERY v. CITY OF NEW YORK III). I believe the section of that case that Mary is misreading follows (in that case, the Circuit Court over ruled a lower court decision that ruled in favor of NYC):
“Appellants are individual artists engaged in painting, photography and sculpture”
“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.”
Please note two things: the Circuit Court is determining a case brought by painters, photographers and sculptors. By law, the 2nd Circuit Court cannot add additional conditions to the case. It must rule on the suit brought. There are two parts of a court ruling, the “justification” and the “decision.”
The Court’s decision” is “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.”
The courts “justification” begins at “While these objects (the crafts of the jeweler, the potter and the silversmith) may at times have expressive content…” BUT the Court can only rule on what the appellants have brought: relief from the NYC prohibition of the street sales of THEIR products. The Court admits that other items “may at times have expressive content …” but the Circuit Court cannot expand their decision to include those other forms of art. ONLY THE SUPREME COURT can made such a global decision. Federal District and Circuit Courts can only decide on the facts and complaints presented and rule on those facts and complaints.
Thus, Marc Rees and Mary Costigan have no leg to stand on. The 2nd Circuit Court ruled on a complaint; it did not create a definition of Art. AND it did acknowledge that other forms of art “can have expressive content.”
On 9/29 when Rees, Costigan and several City police “raided” the Street Art Vendors as the artists were setting up prior to a cruise ship and arbitrarily and capriciously ejected several because “they were not selling art,” Rees also stated he had received complaints that Street Art Vendors caused sidewalk congestion. However, when one artist asked to see the “complaints” he backed off and said it was just his own impression.
The Court in 1996 addressed a similar complaint by NYC that Street Art Vendors caused sidewalk congestion. The Court ruled that congestion was not a valid reason to deny Freedom of Speech. It noted that NYC had administrative means to ensure the sidewalks were safe without limiting or denying Street Art Vendors (See BERY v. CITY OF NEW YORK III at item II.)
Since expression and speech are interchangeable, Freedom of Speech will likely, if brought to the Supreme Court (or to the First Circuit Court of Appeals — which receives cases from Maine), be extended to “the crafts of the jeweler, the potter and the silversmith.”
Marc Rees and Mary Costigan have no right to prejudge that matter, but I WILL ADD that if she causes the citation or arrest of a Street Artist selling anything other than “paintings, photographs, prints and sculptures” the CITY WILL BE TAKEN TO FEDERAL COURT.
The proposal by Counselor Waxman of the City’s Health and Recreation Committee to create a “crafter’s market” in Monument Square a single day a week, to make “crafters” pay for a license to sell at that weekly Market, and to exclude “crafters” from selling anywhere else in Portland must fail.
ANY attempt by Waxman to define crafts as X, Y, or Z, must fail because the Street Artists Rules and Regulations are not exclusive. Waxman could no more could define sculpture as craft than Waxman could define fiber art as craft. As written, the Street Artist Rules and Regulations state there are other examples of “expressive items…” that are covered by Freedom of Speech.
And if Marc Rees and Mary Costigan attempt to re-write the Street Artist Rules and Regulations Rules and regulations to re-write the Street Artist Rules and Regulations to limit expressive items to “paintings, photographs, prints and sculptures” the CITY WILL BE TAKEN TO FEDERAL COURT because it is making an arbitrary and capricious decision. Freedom of Speech cannot be arbitrarily abridged.
Finally, following a Portland Downtown District meeting on October 5, the City is considering a proposal to change the locations Street Artist Vendors may sell from “anywhere on city property” to designated areas by declaring the entire Old Port a Festival on the days Cruise Ships dock, (see the link below) and as Street Artists cannot set up during a Festival without paying an fee. This proposal of the Summer Old Port Festival, Harbor Fest, or the Congress Street Art Fair) that would mean the City would be able to banish Street Artists from cruise Ship landings.
However, if the City attempts to rewrite the Street Artist Rules and Regulations in this manner, the CITY WILL BE TAKEN TO FEDERAL COURT because it is making an arbitrary and capricious to limit an expression of Freedom of Speech without reasonable legal justification.
To support or make comment on the City’s proposals to abridge Street Art vendor freedom of speech, the best place to do it is on the Facebook page created by Abbeth Russell entitled “Protecting Portland’s Cultural Community“. This page is devoted to sending the word out on the proposed restrictions to Street Artist selling in Portland. The page has over 600 “likes” and a multitude of comments on this issue. Abbeth discusses the Portland Downtown District meeting on October 5 here.
Peter B. Hayward
A Maine Armchair Philosopher™
Copyright © 2011 Peter B. Hayward. This blog post may be reproduced or circulated with this copyright notice attached
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