By Albert Amateau
Street artists went to U.S. District Court in Manhattan on July 9 in an effort to stop the Parks Department from imposing new rules that would limit the number of vendors of First Amendment-protected matter in four city parks: Union Square, the High Line, parts of Central Park and Battery Park.
After a two-hour hearing, Federal Judge Richard Sullivan reserved decision on a preliminary injunction to stop the rules from becoming effective July 19. But he said he would hold another hearing on Thurs., July 15, if lawyers for the artists or the city requested it.
Two groups of artists are suing to block the proposed rules for “expressive matter” vending in the four parks.
Robert Lederman, president of A.R.T.I.S.T. (Artists’ Response to Illegal State Tactics), who has won seven previous federal suits against limiting First Amendment-protected vendors, including one that was upheld by the U.S. Supreme Court, filed the action on June 18, the day after the rules were printed in the City Record.
Diane Dua, an artist member of Artists United, filed a separate federal lawsuit on July 8, the day before the hearing, also seeking to block the rules.
About 60 art vendor members of A.R.T.I.S.T. gathered in front of the U.S. Courthouse at 500 Pearl St. an hour before the July 9 hearing in a restrained demonstration. Most of them waited in front of the building and braved a brief rainstorm until Lederman and their attorney, Julie Milner, returned from the hearing at noon to report on the process.
The proposed new rules limit the number of expressive-matter vendors in Union Square Park to 18, with 40 additional spaces of Tuesdays, Thursdays and Sundays when the Greenmarket is not in session. The rules also limit such vendors to five on the High Line, nine in Battery Park, and to 68 vendors in Central Park below 86th St. — mostly around the Metropolitan Museum of Art and Columbus Circle.
The city contends that the proliferation of expressive-matter vendors are overcrowding those areas, causing congestion and limiting the access of other park users. The number of art vendors in the parks has “exploded” since 2001, the city says.
“The proposed rules serve a significant public interest in promoting and preserving accessible public space and by preventing congestion in the four identified parks and adjoining sidewalks,” according to the city’s reply to the two lawsuits.
The city also says the rules are “content neutral” and do not limit the expression of one opinion as opposed to any other.
However, Milner, attorney for Lederman, said that the space currently taken by artists on a busy Saturday in Union Square is “minute” compared to the space occupied by the Greenmarket on the north and west sides of Union Square.
Jon Schuyler Brooks, the lawyer for Dua and Artists United, said the city hasn’t established the fact that artist vendors are the cause of congestion in the park. Vendors of other merchandise require permits and the city has not made an effort to remove from the parks non-art vendors who do not have permits, Brooks said.
Mark Muschenheim, arguing the case for the city, said that artists have plenty of opportunity to vend — without restriction or license — in other parks, as long as they comply with rules that apply to all vendors.
“Most of Central Park is open to artists,” he observed.
The plaintiffs, however, said there is not as much alternative space as the city suggests. Much of the space not restricted in the proposed rules is limited by trees, benches and by planted areas not accessible to the general public.
“Artists are told to go to other parks, but where there are no people there is no market — and that’s what a First Amendment right is about,” said Brooks.
Under the proposed rules, the expressive-vendor spaces are to be allocated on a first-come, first-served basis. Judge Sullivan asked for details.
“What does it mean? Do they line up single file?” Sullivan asked. Muschenheim was unable to say.
The A.R.T.I.S.T. lawsuit charges that the proposed rules target Lederman in particular.
“Lederman is a well-known First Amendment activist who gained national acclaim for taking on former Mayor Giuliani…,” the suit says. “He [Lederman] further incurred the ire of the Parks Department when he won the right of artists to sell their wares in the parks without a permit. Now, nine years after an uneasy truce in the art war, [Parks] Commissioner Benepe threw down the gauntlet when he ordered the illegal arrests of the plaintiffs [Lederman and his co-plaintiff, Jack Nesbitt] on the High Line,” the suit says.
Lederman and Nesbitt were arrested on the High Line in November of last year in connection with vending. The case was dismissed and Lederman and Nesbitt won a cash settlement of their false-arrest claim.
