Judge drops charges against artists who sold work without a permit

Tuesday, August 18, 1998

Street artist R...
Street artist Robert Lederman.

A New York city judge has thrown out charges against three artists arrested for selling their works in public parks and outside museums without a permit.


Manhattan Criminal Court Judge Lucy Billings dismissed the charges last week against Mitchell Balmuth, Patrick Christiano and Gilbert Oh, who all failed to purchase a new $25 city permit to sell their art in parks and certain sidewalks.


Balmuth and Christiano were arrested outside the Metropolitan Museum of Art, while Oh was arrested at a midtown Central Park entrance.


Billings ruled in her opinion dated last Wednesday that art is a form of speech protected by the First Amendment. Billings wrote that “licensing is not a permissible restriction on vending of written material under any circumstances.” She reasoned that if vendors who sell written materials could be exempt from obtaining a license, then artists should be able to sell their visual artwork without a permit.


Billings based her ruling in part on a 1996 decision by the 2nd U.S. Circuit Court of Appeals, which held that art is a form of speech entitled to a high degree of First Amendment protection.


The appeals court wrote in Bery v. City of New York: “The City apparently looks upon visual art as mere 'merchandise' lacking in communicative concepts or ideas. Both the court and the City demonstrate an unduly restricted view of the First Amendment and of visual art itself. Such myopic vision not only overlooks case law central to the First Amendment jurisprudence but fundamentally misperceives the essence of visual communication and artistic expression.”


Billings wrote that city officials still have “a wide array of permissible restrictions on vending generally, and vending of written material specifically, to address concerns of public health, safety and welfare and to carry out the purpose of the parks.”


Robert Lederman, president of a group known as Artists' Response to Illegal State Tactics or A.R.T.I.S.T., of which Balmuth, Christiano and Oh are members, said the decision could have far-reaching ramifications for many other criminal and civil cases involving artists and permit requirements in the city.


Lederman, who was a plaintiff in the Bery case and who has filed a federal civil lawsuit against Mayor Rudolph Giuliani, said there are about 70 cases outstanding involving the arrest or summons of artists for violation of permit rules. “I myself have 26 cases that are still open,” he said. “Unquestionably, the judge's ruling will apply to all these other cases, both criminal and civil.


“This is a great victory for the city's artists, for all of its people and for First Amendment rights. These artists were selling legitimate, First Amendment-protected artwork.”


Artists have had a difficult time defending their free-speech rights under Giuliani's administration, Lederman said.


“Under Mayor Giuliani the Department of Parks has become a testing ground for privatization of public space and First Amendment violations,” he said. “Existing — and undoubtedly unconstitutional — Parks Department rules make public speaking, protesting, holding a single sign, gathering with 20 or more friends, as well as displaying a painting, subject to a permit.”


Thomas Rozinski, general counsel for the Department of Parks and Recreation, said: “The Parks Department has long welcomed artists to its park facilities to produce their works and with the appropriate permit to sell those works. However, allowing an unlimited number of vendors in parks would significantly detract from the recreational environment that the parks were designed to create.”


Rozinski said the permit requirement was “designed to place a limit on commercial activity in the park” and “to maintain pedestrian walkways” in the park. “We do not want the park to become a flea market,” he said.


Lederman dismissed the notion that the Parks Department is concerned with limiting commercial activity. “From a social perspective it's worth noting that the same Parks Department that justifies arresting artists for showing a single painting in a city park by claiming that their activity is inconsistent with the use of parkland are selling McDonald's and Disney the right to exploit and misuse the same property,” he said.


Rozinski said that there is a “very high likelihood” that the city will appeal Billings' ruling in People v. Balmuth.