Judge Dismisses Park Artists Case; Artists Vow to Appeal

The Daniel Patrick Moynihan United States Court House at 500 Pearl Street in Manhattan.

In a setback to artists and sellers of books and other "expressive matter" in New York City's public parks, Federal Judge Richard J. Sullivan of the Southern District of New York has upheld revised Parks Department rules created in 2010 that limit the space available for the vending of materials protected by the first amendment. Judge Sullivan awarded summary judgement to the city in Lederman v. New York City Department of Parks and Recreation, 10 Civ. 4800, dismissing artists' claims that the rules were a pretext for driving artists out of the parks.

Vowing to appeal the case to the Second Circuit of the United States Appeals Court, Robert Lederman, one of the plaintiff's in the artist's suit, stated, “We disagree with the ruling in every detail and expect that the appeals court will reverse the decision.”

Judge Sullivan's decision is not entirely surprising. In July of 2010 he denied the artists a preliminary injunction blocking the implementation of the revised park rules, stating that the rules did not appear to violate the first amendment and that the artists were unlikely to prevail on the merits of their claims. In addition, at an earlier "Show Cause Hearing" on July 8, 2010, Judge Sullivan, while questioning lawyers for both sides, seemed to indicate that he believed it wasn’t his job to interfere in the city’s management of park rules if ultimately they had a right to regulate the time, place and manner of vending of the "expressive matter vendors" selling first amendment materials. In Monday's ruling, Judge Sullivan appears to have accepted at face value the Parks Department assertions that the artists had "ample other avenues to sell their wares."

However, the ruling does seem to leave the door open for the artists to appeal on a variety of issues. What issues the artists and their lawyers choose to include in their appeal remains to be seen.

The full decision is available here: http://www.scribd.com/doc/108588627/SJ-1-Oct-2012

More on the ruling:

OpposingViews.com, Tue, October 02, 2012
NYC Art Activists Must Find New Vending Turf
By Courthouse News
http://www.opposingviews.com/i/society/nyc-art-activists-must-find-new-vending-turf

Central Park Portrait Exchange Exhibition! Saturday, June 16, 10am-2pm

 
Finally! All 15 sets of original drawings made as part of the Central Park Portrait Exchange will be exhibited for one day only on Saturday, June 16 from 10am till 2pm - on site in the southeast corner of Central Park, 60th Street at Grand Army Plaza.

Participating artists include Amon Azizov, Wei Chen, Qiao Fu, Gao Min, Artashes Karslian, Ji Yin Jin, Li Qun, Lin Ruo, Dean Lu, Ren Jien-Guo, Jorge Rivera, Sharif Sadiq, Peter Walsh, Xiang Yue Chuan, Dario Zapata and Zhuang Xuemin.

Click here for the Facebook event page.
See the map below, or click here for a map.

"The drawings will go up in a great shaded spot just a few yards from where many of the Central Park portrait artists - like Xiang Yue Chuan and Dario Zapata - set up and work every day," says organizer Peter Walsh. "But why is space available? Because the new park rules have made this perfect location 'illegal' for artists." The one day "pop-up" exhibition can set up only because the portrait exchange drawings will be marked "For Display Only, Not For Sale."

Artists have sued the Parks Department in federal and state court. Oral arguments on the City’s motion for summary judgment in the federal lawsuit will be heard by judge Richard J. Sullivan on Thursday, June 28 at 2:30pm at the Federal Courthouse at 500 Pearl Street in Manhattan.



View Central Park Portrait Exchange Exhibition in a larger map

Portrait Exchange Exhibition on the Way!

"Exhibition-in-a-Box"

The thirty original drawings from the Central Park Portrait Exchange will be shown soon in a one day pop-up exhibition in Manhattan’s Central Park. The portable display is designed to emerge from a milk crate on wheels and unfold into an elegant display that gives park visitors – and the participating artists themselves – a chance to finally see all fifteen pairs of portrait exchanges simultaneously.

Built by project organizer and artist Peter Walsh, the “exhibition-in-a-box” will set up directly across the street from Grand Army Plaza’s Sherman monument in the southeast corner of Central Park on a spot that has recently become “off-limits” to artist vendors because of controversial new park rules instituted in 2010. Those rules have sparked several artist lawsuits against the city in both state and federal courts. Those new rules do not apply to the upcoming display of the Central Park Portrait Exchange since they explicitly impact only “expressive matter vendors” selling art in New York City parks and do not apply to artists who, as Federal Judge Richard J. Sullivan said at a court hearing in July of 2010, wish to participate in the “marketplace of ideas” by just displaying art.

Says Walsh: “This is an opportunity for a group of artists to reoccupy a part of the commons that is increasingly under attack from well-heeled interlopers who seek to reduce the varied ways in which a public park can be used by ordinary people. I can’t wait to talk to people in the park and see how they respond to the drawings. Showing art in an open public place creates incredible dialogues that go beyond what is shared in the cloistered space of galleries and museums.”

The date for the one-day show will be announced soon. For details of the ongoing construction of the exhibition, see the photo slideshow below.

Federal Judge to Review New Materials in Artists’ Suit

Following hard on the heels of revelations that New York City’s Department of Parks and Recreation is no longer holding musicians and performers accountable to the same rules that apply to visual artists, Federal Judge Richard Sullivan has granted artists permission to file new materials in their ongoing lawsuit against the Parks Department.

In a May 14, 2012 letter to Judge Sullivan requesting permission to file the new materials, the artists’ attorney Julie Milner claimed that the City’s new position on buskers and entertainers was directly at odds with papers filed in federal court by the city. According to Milner, “this raises an issue of material fact of whether artists are targeted for enforcement not equally applied to similarly situated individuals.” The Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution requires that laws be enforced consistently for individuals in similar circumstances.

Reached for comment yesterday by Village Voice reporter Victoria Bekiempis, the City’s attorney Sheryl Neufeld stated "The plaintiffs are just engaging in wishful thinking. There is nothing in today's order that supports their belief that the judge has given their contentions credence."‬

In a May 14, 2012 email, Robert Lederman, an artist plaintiff in the federal case and president of the street artists organization A.R.T.I.S.T., described the City’s new take on park rules enforcement as “explosive” and “a complete reversal of the City’s previous legal position.”

Judge Sullivan has scheduled oral arguments on the City’s motion for summary judgment for Thursday, June 28, 2012 at 2:30p.m. at the Federal Courthouse at 500 Pearl Street.

See also:

Judge Sullivan’s Order:
http://www.scribd.com/doc/93817802

Artists’ Letter to Judge Sullivan:
http://www.scribd.com/doc/93667042/Letter-to-Judge-Sullivan-to-Supplement-Record-14-May-2011


“Federal Judge To Decide if Artists Can Play in The Park”
Village Voice, Victoria Bekiempis, Tuesday, May 15 2012

Musicians Booted from Washington Square Park

New York City Parks Department PEP officers have begun issuing tickets to musicians and other performers who ask for donations in Manhattan’s famed Washington Square Park. The park has been a meeting place for street musicians and their fans since it became a haven for the emerging folk music movement in the 1940s, more than 60 years ago.

For comprehensive coverage of the situation see Geoffrey Croft’s A Walk In the Park blog post “Bloomberg $ Cracks Down On Performers In Washington Square Park Ticket Blitz.” The post includes a dozen links to other articles.

Why now?

Although none of the major news outlets such as the New York Times have acknowledged it, the crackdown appears to be in direct response to street art vendors’ legal suits against the Bloomberg Administration’s new rules on “expressive matter” vending in public parks. The new rules have been in effect since July 2011 when a panel of state appellate judges vacated a temporary restraining order blocking the city from implementing the rules.

During the ongoing suits in both state and federal courts, visual artists have accused the city of selective enforcement of the rules. Ticketing musicians and other performers is likely an attempt to send a message to the courts that this is not true.

What’s different about this new crackdown on artists and musicians?

For the first time in the battle over the new rules, the city is issuing tickets enforcing a new rule that makes it illegal for artists, musicians and performers to operate within fifty foot of monuments (including park features like Washington Square Park’s fountain) and within five foot of park benches.

According to an email distributed on December 7, 2011 by artist Robert Lederman, who is the President of the street artists organization A.R.T.I.S.T. and a plaintiff in the federal court case against the city, “In Washington Square Park, as in many other NYC Parks, 50 feet from a monument alone precludes the entire park from First Amendment activity. The arch, the fountain and all statues and plaques are considered monuments. PEP officers have stated on video that in WSP there is no place for an artist or performer to legally set up, under these new rules.”

So what?

Officials and attorneys representing the New York City Department of Parks have repeatedly stated in both state and federal court that artists who are unable to secure an authorized “green medallion” spot created by the new rules in Central Park, Union Square Park, Battery Park and the High Line can simply decamp to other parks and locations. What the new crackdown against musicians and performers in Washington Square Park suggests is that those city officials and attorneys have been misrepresenting the scope and restrictiveness of the new rules. It should be interesting to see how the judges in those cases (Federal District Court Judge Richard J. Sullivan and Justice Milton A. Tingling, Jr. of the New York State Supreme Court) respond to evidence that they have been misled.

Update:

Community Board 2 will be holding a "Washington Square Park Speak Out" on Monday, December 19th at 6:30pm at NYU's Kimmel Center, 60 WSP South, 8th floor. If you want to email comments, send them to washingtonsquareparkspeakout@gmail.com.

Session Five Report; Successful "Display Only" Stand

Peter Walsh and Ji Yin Jin exchanging portraits near Grand Army Plaza in the southeast corner of Central Park, July 30, 2010.

Although the new park rules are currently in effect, two excellent portrait exchanges were completed this morning: Ji Yin Jin and Peter Walsh and Qiao Fu and Peter Walsh. A cool summer breeze made for a relaxing drawing session, especially coming at the end of a particularly hot and sticky July. The new portraits will be posted soon.

At 10:30am, after the exchanges, Peter Walsh set up a "display only" stand in a plaza location that is currently "illegal" for art vendors. Just two weeks ago five artists would have been on site. Two PEP (Park Enforcement Patrol) officers came by to say that the spot was not open for use. After Walsh explained that nothing was for sale, and while videotaping the entire exchange, one of the officers called a supervisor and the stand was allowed to remain at the location. Federal Judge Richard Sullivan has specifically stated that a "Display Only" stand is a protected form of free speech. Later, Xiang Yue Chuan came by with a smile, "You won!"

Judge Denies Preliminary Injunction – Protests to Begin Monday Morning.

Federal District Court Judge Richard J. Sullivan has declined to issue a preliminary injunction blocking the enforcement of the new NYC Park Rules designed to dramatically reduce the number of artists working at key locations in city parks. Artist protests will begin Monday morning at 6am in Union Square Park in Manhattan. Stay tuned for details soon.

Although it is disappointing that the judge failed to rule against the new park rules, history suggests that this is just the beginning of the latest round of battles over artists’ use of public space. For example, artists have previously been denied injunctions by judges and then have gone on to win their lawsuits. Lawyers for the current artist lawsuits, Lederman et al v. New York City Department of Parks and Recreation et al and Diane I. Dua et a. v. New York City Department of Parks and Recreation et al, will appeal the preliminary injunction denial immediately. The cases themselves are still very open.

To see the full text of the judge's ruling, click here:
http://www.scribd.com/doc/34440271/Lederman-PI-Decision.

Report on the “Show Cause Hearing” Regarding New Park Rules for Artists

(Photo One: Artists Protest at Federal Courthouse in Manhattan. Photo Two: Robert Lederman, artist plaintiff and president of the street artists' group A.R.T.I.S.T, speaking to reporters after the Show Cause Hearing. Photos by Peter Walsh)

About 100 artists gathered outside the Moynihan Federal Courthouse at 500 Pearl Street in Manhattan this past Thursday morning to protest the proposed revision of New York City Park Rules as Federal Judge Richard J. Sullivan held a two hour “Show Cause Hearing” that may lead to a temporary injunction preventing the Parks Department from implementing the rules until the full case is heard.

Judge Sullivan promised to rule by Friday, July 16th. Enforcement of the new rules is due to begin Monday, July 19th at 6 a.m.

In detailed questioning of lawyers representing both the city and the artists, Judge Sullivan touched on at least four major issues that affect the standard he needs to meet if he decides to grant the injunction.

1) Content Neutrality. Are the new rules biased against certain opinions or individuals? The judge clearly thought not.

2) The government’s right to regulate the use of parks, specifically concerning issues of public safety (i.e. Are the artists causing dangerous congestion?) and secondarily the preservation of park experience based on aesthetics (connected to a D.C. Federal Court ruling keeping vendors off the D.C. mall). The judge appeared to believe that the city made assertions of congestion but had no real fact-based evidence as to congestion nor as to what number of artists would be appropriate (50 artists are OK but 200 are not? Why?). However, he did seem to indicate that it wasn’t his job to interfere in the city’s management of park rules if ultimately they had a right to regulate the time, place and manner of vending of First Amendment vendors.

3) Narrow Tailoring. If there is a genuine government interest in reducing congestion in the parks, are these particular rules tailored in an appropriately narrow fashion? The judge appeared to think that the city provided little or no evidence on the appropriate level of restriction and was particularly skeptical of the logistics of the city’s first come, first serve plan for distributing proposed vending spaces in the parks. (The artists are supposed to line up at the edge of each park and then, at 6 a.m. sharp, race to a limited number of authorized sites? The city’s attorneys admitted point blank that they didn’t know how this would work.)

4) Alternate Channels/Venues. Lawyers for the city claimed that, except for the four locations scheduled for regulation (Central Park South, Union Square Park, Battery Park and the High Line) the rest of New York City’s parks are open for use by artists. Lawyers for the artists countered that, in reality, current rules concerning the width of sidewalks and distance from park furniture for vending already rule out large portions of parks for use by First Amendment vendors. The judge seemed to believe that neither side presented substantive evidence of these assertions and both sides declined an invitation for a second hearing to provide evidence. The judge left open the possibility of such a hearing for next Thursday morning, July 15th. Attorneys for the artists also asserted that the First Amendment allows artists to meaningfully interact with the public and therefore artists should be allowed to set up in those areas where people normally congregate – the high traffic areas scheduled for regulation.

Again, a ruling on a temporary injunction to block the enforcement of the new park rules is scheduled to be made on or before, Friday, July 16th. Enforcement of the new rules is due to begin Monday, July 19th at 6 a.m.

Happy Fourth of July! See you in court.

July 8th Hearing Set for City to Respond to Artists’ Request for a Preliminary Injunction Against New NYC Park Rules

In response to an artists' lawsuit, Judge Richard J. Sullivan of the United States District Court, Southern District of New York has ordered the New York City Parks Department to “show cause as to why a preliminary injunction should not be issued” in Lederman et al v. New York City Department of Parks and Recreation et al.

The “Show Cause Hearing” is set for this Thursday, July 8th, 2010 at 10:00 A.M. in Courtroom 21C of the United States Courthouse at 500 Pearl Street, in downtown Manhattan. The docket number is 1:10-cv-04800-RJS. For a map, click here.

What does this mean? Artists have asked the courts to stop the enforcement of the new Park Rules, due to begin on Monday, July 19th, until the larger court case is decided. The judge will rule on a possible preliminary injunction. Although it will be excellent news for artists working in the parks if an injunction blocks the rules in the short run, ultimately it will be the decision in the actual court case that will preserve artists’ free speech rights. To see the artists’ Verified Complaint against the City, click here.

If you decide to attend, please allow extra time to pass through the security screening. Also remember that no cell phones, cameras or recording devices are allowed in the building. However, you are allowed to check them at the entrance and pick them up when you leave. Also note that you may be able to draw in the courtroom, as long as you are not disrupting the proceedings. Courtroom personnel are the ultimate authority on this.