"Giuliani, Stern Violated NYC Law -NY State Appeals Court"



by Alan Alex, Artist News Network



A NY State appeals court has just issued a ruling which will have a major effect on a long-pending Federal Court case pitting Mayor Giuliani and Parks Commissioner Stern against street artists.



According to the three judge panel, Parks Commissioner Henry Stern, “criminalized through executive fiat that which the City Council has legislatively authorized” and, “cannot make unlawful what the Legislature still has on the books as lawful”, by imposing an improper lottery and artist permit requirement on NYC street artists.



The 7/31/2001 ruling on an appeal filed by the City was in response to Manhattan Criminal Court judge Lucy Billings’ 8/12/98 ruling in People v Mitchell Balmuth and Patrick Christiano [1]. Both defendants are street artists and A.R.T.I.S.T. members who were issued summonses under the Parks Department artist permit requirement. The permit was created by the Mayor and Commissioner Stern in 1998 after they lost the first street artist Federal lawsuit [Lederman et al v City of New York; Bery et al v City of New York] [2].



Judge Billings’ 1998 ruling overturned the artist permit finding it to be a direct violation of NYC law and the NY State Constitution. The City continues to enforce the permit requirement to this day, summonsing and arresting artists despite knowing the law specifically exempts book vendors and artists from any license or permit requirement anywhere in the City of New York.



Since wining the first street artist lawsuit in 1996 street artists are fully protected by the First Amendment in NYC and share all exemptions that book and newspaper vendors were granted by the NY City Council in 1982. The Parks Department was a named defendant in the first street artist lawsuit. Ironically, former City Council member Henry Stern was a co-sponsor of the 1982 bill granting book vendors full First Amendment protection.



This NY State appeals court ruling is expected to result in a long-awaited ruling from Federal Judge for the Southern District Lawrence McKenna in Lederman et al v Giuliani [3], the lawsuit seeking to overturn the Parks Department artist permit. This case has been languishing in Federal Court for an unprecedented three and-a-half years despite the plaintiffs presenting hundreds of pages of evidence including sworn statements by City officials proving that the City selectively enforces its requirement against artists while allowing hundreds of book and newspaper vendors to sell on Parks property without obtaining any form of permit or competing in a lottery.



The appeals court ruling also opens up a whole new aspect of damages for the many artist-plaintiffs in the case who were arrested, had their art seized or received summonses since it is now established that City officials knowingly violated NYC law and not just the Federal and State Constitutions’ First Amendments.



From the first day of the artist-permit requirement, most A.R.T.I.S.T. members refused to apply for a permit or participate in the lottery, demonstrated against the requirement and continued to set up their art displays on Parks Department property without the permit. A.R.T.I.S.T. president Robert Lederman has made the Parks Department property right outside the Mayor’s office at NY City Hall a protest-vending location from which to sell his anti-Giuliani postcards and paintings. Lederman has been falsely arrested more than 40 times to date for protesting against the Mayor and has never been convicted on any charge.



On April 16, 2001 Judge McKenna, issued an interim order giving the City 10 days to explain why Judge Billings’ ruling does not mean that the plaintiff artists have won the Federal lawsuit. To quote the judge, "Ten days from the date of this order defendants shall submit supplemental briefing not to exceed five pages regarding the preclusive effect of the decision in People v Balmuth; 178 Misc. 2nd 958 681 N.Y.S. 2d 439 (NY Crim. Ct. 1998).



In responding to the Judge’s order, Corporation Counsel Robin Binder (212 788-0818), who has been the lead City lawyer on all the street artist lawsuits, conceded in her 4/26/2001 brief that if the plaintiffs prevailed in the State Appeals court then Judge Billings’ ruling would be binding on the Federal lawsuit. Yet, in response to the State appeals court ruling, Ms. Binder wrote to Judge McKenna on 7/31/2001 that the ruling in favor of the street artists has, “no preclusive effect”, on the case.



In a related development in this same issue, Deputy Parks Commissioner Jack Linn (212 360-1319) who supervises the artist permit system, has allegedly been telling artists who have a permit that as of the next monthly lottery they will no longer be allowed to sell NY City scenes. According to artists who were approached by Linn, only landscapes, nature scenes and the like will be allowed. This adds an entirely new wrinkle to the lawsuit as it creates a blatant issue of censorship.



The City has maintained that their permit requirement is content neutral despite the fact that artists must submit their work to a panel appointed by Mayor Giuliani to even be eligible to enter the lottery. The panel is supervised by Mr. Linn who has personally supervised hundreds of blatantly illegal artist arrests since 1998.



During a 65 day long demonstration outside the Metropolitan Museum of Art in 1998, artists who displayed satirical portraits of the Mayor were repeatedly arrested and had their art seized even when they were not offering the art for sale. Some were arrested while in possession of nothing more than a single picture of the Mayor which they were holding in their hands while demonstrating or while painting a cardboard protest sign. Hundreds of paintings of the Mayor were seized and, despite no case ever resulting in a guilty verdict, none have been returned to the artists.



Despite hundreds of arrests and thousands of summons being issued since 1998 when the permit was created, not one case has ever resulted in a conviction, fine or plea bargain. This exactly parallels the facts in the original street artist case.



From 1994 until 1997 more than 800 NYC street artists were arrested for not having a vendors license, thousands of summonses were issued and hundreds of thousands of works of art were confiscated and sold at a monthly NYPD auction. As later emerged in the lawsuit when internal memos were turned over by the City, lawyers for the City and the Manhattan D.A. had determined before any of the arrests that they were unconstitutional and that none would ever be prosecuted.



NY City’s street artists were the very first group targeted by Mayor Giuliani when he assumed office in January of 1994 as part of a consistent effort to weaken First Amendment rights. Throughout his administration they have been subjected to countless examples of unconstitutional policies, false arrest, illegal seizures of property, censorship, malicious prosecution and unequal protection under the law.



The City, the Mayor and all NYC street artists await Judge McKenna’s long-overdue decision in this case.



[1] NY Law Journal 7/31/2001



People v Balmuth; 178 Misc. 2nd 958 681 N.Y.S. 2d 439 (NY Crim. Ct. 1998).



Also see: see Judge Refuses To Enforce Permit Rule, N.Y. Law Journal 8/17/98; Charges Are Dropped in Sale of Art in Parks in New York, N.Y. Times 8/18/98; N.Y. Post Editorial, "Free Speech or Free Exhibition Space?" 8/20/98



NY Post editorial on the Billings Decision



"Thanks to Mayor Giuliani's quality-of-life program, New Yorkers no longer have to step over quite so many vagrants in order to enjoy the greenery of New York's parks or the aesthetic stimulation of the Metropolitan Museum of Art. Unfortunately, thanks to Manhattan Criminal Court Judge Lucy Billings, they might now find themselves navigating their way around hordes of self-described "artists" who think it's appropriate to liken politicians they oppose to Hitler." NY Post Editorial 8/20/98 "Free Speech or Free Exhibition Space?"



[2] Street artists are legal: Entire text of the Bery decision of the U.S. Court of Appeals for the Second Circuit (Argued: April 26, 1996 Decided: October 10, 1996)



Lederman at al v City of NY; Bery et al v City of NY



UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT



Nos. 1620, 1621, 1782 August Term 1995

(Argued: April 26, 1996 Decided: October 10, 1996)

Docket Nos. 95-9089 (L), 95-9131, 96-7137



[3] THE PARKS DEPARTMENT ARTIST PERMIT CASE



Lederman et al v Giuliani 98 Civ. 2024 (LMM)



http://www.openair.org/alerts/artist/nyc.html



For the text of the complaint (it has since been amended numerous times)



SEE: New legal complaint filed in Federal Court against Mayor Giuliani.



Street Artist Files $200,000,000 lawsuit against Mayor Giuliani, Parks Department and NYPD (3/20/98)

titled New legal complaint filed in Federal Court against Mayor Giuliani. Details the charges of constitutional violations (9/5/98)

Parks Commissioner Henry Stern, Deputy Commissioner Jack Linn (212) 360-1313.



NYC Corporation Counsel Corporation Counsel Michael Hess, Robin Binder (212) 788-0818



The Central Park Conservancy 212 310-6600 is a co-defendant in Lederman et al v Giuliani. The Conservancy’s director is Regina Peruggia, Mayor Giuliani’s first wife.



Robert Lederman, President of A.R.T.I.S.T. (Artists’ Response To Illegal State Tactics)



(718) 743-3722



robert.lederman@worldnet.att.net



http://baltech.org/lederman/



Street artist information



http://www.openair.org/alerts/artist/nyc.html



"Because we are a City that loves and supports artistic expression so generously, New Yorkers have a unique understanding that the First Amendment protects the right of artists to express their diverse and sometimes controversial views." -The Rights and Responsibilities of Public-Funded Cultural Institutions-Weekly column by Mayor Rudolph Giuliani dated 4/18/2001



"As the cultural capital of the world, New York City benefits immensely from the quality and diversity of creative expression found throughout the City," Mayor Giuliani said. "As a result, New Yorkers uniquely understand that the First Amendment must protect the right of artists to express their diverse and sometimes controversial views.” Giuliani press release 4/3/2001



"An exhibition of paintings is not as communicative as speech, literature or live entertainment, and the artists' constitutional interest is thus minimal." -Giuliani appeal brief against street artists having First Amendment protection, Giuliani’s appeal brief in Giuliani v Lederman et al and Giuliani v Bery et al, filed with the U.S. Supreme Court 2/24/97.



Press Mulling Suit Against Mayor" NY Law Journal 2/3/99



"A lawsuit charging the Giuliani Administration with violating the First Amendment for using police to interfere with the press's ability to cover crime scenes and emergency situations may be on the horizon.... Gabe Pressman made his views clear: the Giuliani Administration is more "heavy handed" and "authoritarian" than seven prior administrations he has covered. "The press is treated in this town as though it were in a police state," he added...A third panelist, former Mayor David Dinkins, suggested there have been other problems with the way Mr. Giuliani deals with the press, including filtering all information through City Hall, misusing the state's Freedom of Information Law to delay the release of data, and freezing out reporters whose articles have displeased the Administration. Several in the audience, which included many reporters and news executives, also criticized the Mayor's press relations. Paula Madison, an executive at WNBC, said she had fielded a number of telephone calls from the Mayor and his press office in which she had detected "a really concerted effort to intimidate."