Park Artists Take Case to the U.S. Supreme Court

The United States Supreme Court. 

Image from Wikipedia under a Creative Commons Attribution-ShareAlike 3.0 License.

Following on the heels of an appeals court loss in September, the artist-plaintiffs suing the City of New York over rules regulating art vendors in city parks are petitioning the United States Supreme Court to hear the their appeal. Robert Lederman, the lead plaintiff in the case and president of the street art vendors’ organization A.R.T.I.S.T., released a statement vowing “We intend to appeal the ruling to the U.S. Supreme Court at the earliest possible date, and feel confident that the many errors in both the appeals court ruling and the lower court ruling will be overturned.”

As they move to  petition the Supreme Court, it appears that Lederman and his attorney Julie Milner may be approaching this latest appeal from a new direction based on the court’s ruling that New York City Mayor Michael Bloomberg and Deputy Mayor Edward Skylar could avoid being deposed in the case. According to Lederman, the decision makes it “virtually impossible to obtain a deposition from any government official.” In addition, Lederman has stated that “If allowed to stand, this ruling would protect police officials, mayors, agency commissioners, governors, senators or even the US President from ever having to face a sworn deposition. Even the lowest level government officials would be able to cite this ruling in order to avoid giving a sworn deposition.”

Federal Court Upholds City Rule Regulating Art Vendors in Parks
Victoria Bekiempis, DNAinfo New York, September 26, 2013

Appeal Is a Washout for NYC Street Art Activist
Adam Klasfeld, Courthouse News Service, Wednesday, September 25, 2013

In artist case, Court Limits Right to Depose Government Officials
Robert Lederman, President of ARTIST, Friday, September 27, 2013

Appeals Court Decision
Judges Cabranes, Hall and Chin, United States Court of Appeals for the Second Circuit, Wednesday, September 25, 2013

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

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

Parks’ Decision to Allow Performers in Park Could Aid Artists’ Suit

The New York City Parks Department has reversed course on its policy of holding entertainers and musicians performing in city parks accountable to the same restrictive rules and regulations affecting visual artists.

In an article on the Washington Square Park Blog, Parks Spokesperson Phil Abramson announced that “Busking and entertainers are not subject to the expressive matter vending rule,” adding, “They must still abide by other park rules though such as they cannot block benches or paths, play with amplified sound, etc.” The victory for park goers and performers could aid visual artists in their ongoing suit in federal court against new expressive matter vending rules promulgated by the Parks Department beginning in 2010.

According to an article published by email on May 11, 2012 by Robert Lederman, president of the street artists’ organization A.R.T.I.S.T and a plaintiff in the visual artists suit, “The Parks Dept is now violating their entire rule revision by reversing the legal position they stated throughout the Federal lawsuit (that the rules were equally enforced against musicians and performers as well as visual artists).”

Why does the policy reversal matter?

As defendants in the lawsuit, the Parks Department needs to show that they are not targeting particular classes of people or selectively enforcing the new parks rules on vending. If they allow performers to operate in park spaces outside of the same rules that they enforce against visual artists, they will likely be in violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. That clause states "no state shall ... deny to any person within its jurisdiction the equal protection of the laws."

More info:

"City Backs Down On Artists & Musicians In Washington Square Park"
A Walk in the Park, May 14, 2012, by Geoffrey Croft

"City Reverses Course on Performance Crackdown at Washington Square Park – No More Ticketing and Fining of “Entertainers and Buskers”"
Washington Square Park Blog, May 11, 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.

Update on the Public Space Issues for Occupy Wall Street: Liberty Square

Liberty Square / Zuccotti Park on the morning of Thursday, September 29, 2011. Lunching office workers in the foreground, Occupy Wall Street protesters in the center of the park.

I spoke today with Professor Jerold S. Kayden, Harvard Professor and author of the book “Privately Owned Public Space: The New York City Experience.” Professor Kayden graciously led me through the sometimes arcane business of New York City’s incentive zoning rules and regulations. Here’s what I found out from our conversation and from Professor Kayden’s book.

Zuccotti Park, known as Liberty Square by the Occupy Wall Street protesters, is considered a “special permit plaza.” Technically speaking, unlike previously reported, it’s probably not a “bonus” plaza, where the original developers secured extra floor space at One Liberty Plaza, the fifty four floor skyscraper just to the north of the park. Bonus office space at that building likely was allowed by the creation of the public space around the building itself. Instead the special permit plaza likely came into being in exchange for other zoning concessions authorized by the Department of City Planning.

Regardless, according to Kayden, the park’s owner Brookfield Office Properties likely agreed to provide a “physical place located on private property to which the owner has granted legally binding rights of access and use to members of the public, most often in return for something of value from the city” (Kayden, Privately Owned Public Space, p.21), that “value” in this case being a zoning concession.

So can Brookfield ask the protesters to leave?

No and Yes.

“The Zoning Resolution requires privately owned public spaces to host ‘public use,’ but never expressly defines limits, if any, an owner may impose upon such public use. The Department of City Planning has taken the position that an owner may prescribe ‘reasonable’ rules of conduct. In determining the definition of reasonable, the Department has looked to the rules of conduct applicable in City-owned parks for general guidance.” (Kayden, POPS, p.38.) Note that these are very similar to the kind of “time, place and manner” restrictions that the city is using against artists working in public parks and that are at the heart of artists’ current lawsuit against the Parks Department in the Lederman federal case.

Professor Kayden believes that creating a rule of conduct that says “no political protests” is unlikely to be considered “reasonable” under these terms, but that this is not a First Amendment issue. The park is still privately owned and says Kayden, “in all likelihood, it would be an uphill climb to maintain that Brookfield Office Properties is a governmental actor subject to the full provisions of the First Amendment.” (See American Manufacturers Mutual Insurance Company v. Delores Scott Sullivan, 526 U.S. 40 (1999) for a court ruling on standards for what constitutes “state action” by a private owner.)

However, while Brookfield likely can’t ask Occupy New York to leave Zuccotti Park because they are using the park for a political protest, they may be able to ask them to leave for other reasons. For example, if the park becomes unusable by anyone other than protestors, they could essentially be asked to leave so that others could use the park. Or, if they were creating too much noise, sleeping in the park, or acting in other manners that might block the use of the park by other park goers or community members, these might indeed constitute violations of reasonable rules.

Finally, according to Professor Kayden there is little case law established on what constitutes “reasonable” rules when applied to privately owned public spaces, and certainly none about political protesters using those spaces, so there are no clear guidelines about how a court might rule if action was taken by the park’s owners.

In the end, the situation at Liberty Square may be shaped more by public relation issues than by the legal issues. Neither Brookfield Office Properties, the owners of the public space known as Zuccotti Park, nor the New York Police Department are likely to want to be perceived as initiating a crackdown against protesters that would be watched around the world and could potentially spark even larger protests.

Peter Walsh

Whose Park Is It? Artist Lederman Arrested Protesting at Panel Discussion

Robert Lederman Protesting at Panel Discussion held at the Museum of the City of New York. Photo courtesy of "A Walk in the Park".

Carrying a hand-painted sign that said “PARK PRIVATIZATION IS A REAL ESTATE SCAM - IT IS ALL ABOUT RAISING PROPERTY VALUES FOR THE MAYOR’S WEALTIEST FRIENDS,” artist Robert Lederman was arrested recently while protesting at a Parks panel discussion that featured New York City Parks Commissioner Adrian Benepe and other supporters of the unelected “public/private partnerships” that increasingly control the administration of New York City’s parks.

Lederman is the president of the street artists organization A.R.T.I.S.T and is currently suing the Parks Department in Federal Court over new rules that restrict artists’ right to work in city parks.

Here’s the news coverage, including video of Lederman’s arrest.

Videos of the protest and arrest:
http://www.youtube.com/watch?v=dAWooZKyDy0
http://www.youtube.com/watch?v=MNFWHAc_-XQ

“Night Of Protests At Museum Park Funding Forum”
A Walk in the Park, by Geoffrey Croft, August 13, 2011

“Which Park Is It, Anyway?”
ParkSlopePatch, by Johanna Clearfield, August 12, 2011

“Is the revenue-generating park a good thing? Commissioner Benepe says it ‘depends on who’s in charge’”
Capital New York, by Dan Rosenblum, August 11, 2011

“Activist is arrested at a panel about private funding for parks”
The Villager, by Albert Amateau, August 11, 2011

Brian Haw and the Fight for Public Space

Brian Haw (middle) with Peter Walsh (left) and Zuky Serper (right) at Parliament Square, London, November 2, 2004. Photo: Susan Kelly.

Peace to Brian Haw (1949-2011).

Coming up out of the tube into London’s bright mid-day sun, I wheeled my election cart up into Parliament Square, Big Ben’s Clock Tower looming over me as I struggled to get my bearings. Immediately I was welcomed politely to a patch of park sidewalk across the street from Parliament by a scruffy, sharp-minded man in a winter coat and a cap covered with political buttons like the hull of a ship is encrusted by barnacles. It was November 2, 2004, Election Day in the U.S. presidential election, and Brian Haw had already been on site for three years. Brian, armed with a cheap bullhorn and a forest of hand-lettered signs, was a one-person campaign against the Iraq War. He kindly gave me tips on the lay of the land as I set up a voting booth for Plebiscite2004, ostensibly an art project, that I had been running for about a month in the run-up to the election.

This post is not about that project or U.S. elections or the War in Iraq. Instead, I’d like to honor Brian as a defender of the right of ordinary people to make use of public spaces in vigorous, difficult and honorable ways, as opposed to notions of public spaces as being white-washed “neutral spaces” or “quiet zones” or even worse, public-private real estate to be sold off to the highest bidder.

Like the current and on-going court battle over artists’ rights to work and sell in New York City’s parks, Brian’s extended legal fight over his right to use a park sidewalk in London and to speak his views publicly gets at the heart of what we want democracy to be. For example, what does it mean that across the street from where Ai Wei Wei’s "Circle of Animals/Zodiac Heads" is now installed in front of Manhattan’s Plaza Hotel, New York City Mayor Michael Bloomberg has instituted a crack-down on artists’ ability to interact with the public. This is not meant to conflate the seriousness of Ai’s detention with the ability of a small group of artists to make a living, but rather to point out that the fight for public space and freedom of action is being played out across the world – in London as well as Beijing, in New York as well as Cairo.

It takes people like Brian Haw and Robert Lederman, the repeatedly arrested president of the New York City based street artists’ group A.R.T.I.S.T., being willing to fight on the street and in the courts to be able to keep the “public” in public space.

Every art action on the street entails a negotiation over the right to be there. On that day in London in 2004, Brain Haw used his experience to help me defend my own right to be there as City of London police officers pressured me to move. Literally I was given a choice: be arrested if I stayed on one side of a crack in the sidewalk, or be fine if I moved to the other side (in this case, into the jurisdiction of the City of Westminster). Here in New York for the same political art project, I had to get the New York Civil Liberties Union (NYCLU) to intercede on my behalf in order to set up in front of the Unisphere in Queens’ Flushing Meadows Corona Park. The street is the front line of the push between regular people and the authorities – no matter where you are.

For more on Brian’s life and times and his court battles, see these links:

Brian Haw, New York Times Obituary

Brian Haw, Wikipedia

Brian Haw, Al Jazeera Obituary

Public Space Battle in NYC Grows: City Actions Now Extend Beyond Artists to Include Musicians and Newspapers

As scorching summer temperatures hit Manhattan, sparring over what a person can do in New York City’s public parks has heated up too.

In May a panel of New York State Appeals Court judges allowed new park rules to go into effect, dramatically restricting where artists can work and sell in four busy city parks, pending the outcome of an artists’ lawsuit against the city’s Parks Department.

See:
“Panel Finds Vendor Restrictions Do Not Violate Free Speech Rights” New York Law Journal, May 18, 2011.
"Appeals Court Rules Against Artists in Dua v. City of New York Department of Parks Suit," Cental Park Portrait Exchange, May 18, 2011.


Meanwhile the Parks Department ordered it’s Parks Enforcement Patrol (PEP) officers to expand enforcement of restrictions beyond artist vendors to include musicians in newly created “Quiet Zones,” including near the crowded and popular Bethesda Fountain in the heart of Central Park.

See:
“Musicians chased from Central Park,” New York Post, May 28, 2011.
“Musician Crackdown At Central Park's Bethesda Fountain,” A Walk in the Park, May 29, 2011.
“No Radios by the Fountain, Please! Or Cellos!,” New York Times, June 5, 2011.


Concurrently, Robert Lederman, president of the street artists organization A.R.T.I.S.T and an artist/plaintiff in a second suit against the city, in federal court, reports that new depositions of PEP officials confirm that sellers of newspapers such as the New York Times, New York Post and the Daily News are now officially banned from selling from temporary stands in parks such as Union Square. Those news-sellers would be forced to compete for the same restricted locations used by artists.

See:
“Why Bloomberg is Evicting Newspaper Vendors From 4 NYC Parks,” Robert Lederman, June 8, 2011.
“Art vendors spots restricted at Union Square, High Line,” The Villager, Volume 81, Number 2: June 9 to 15, 2011.

Appeals Court Rules Against Artists in Dua v. City of New York Department of Parks Suit

A panel of judges from the Appellate Division, First Department of the New York State Supreme Court affirmed a lower court ruling by Justice Milton A. Tingling denying a preliminary injunction to the artist plaintiffs in the Dua v. City of New York Department of Parks suit. The unanimous decision vacates the current temporary restraining order blocking the implementation of a new set of Park Rules and is a setback for artists working in New York City's Public Parks.

The new rules will go into effect sometime this week, returning artists to the difficult circumstances experienced last summer between July 19, 2010, when the rules were first implemented and August 25, 2010, when Justice Martin Schoenfeld granted a temporary injunction blocking enforcement of those rules. Click here to see those Rules, (Then click to the right on the link: "Adoption of Rule Amendments and Maps Regarding Expressive Matter Vending [as published in the City Record on June 18, 2010 - PDF, 781 KB]").

In making their decision, the five judges ruled that the plaintiffs "failed to demonstrate 'a likelihood of success on the merits' of their challenge to the subject regulations, since they failed to show that the regulations violated their rights under the New York State Constitution." To read the decision, click here.

What next?

No word yet from the Dua artist plaintiffs, but we should know something soon.

Robert Lederman, President of the street artists' organization A.R.T.I.S.T., vowed today in an email blast to win his own suit in Federal Court against the City Parks Department, Lederman et al. v Parks Department. Mr. Lederman stated that that lawsuit "is proceeding according to schedule."

For an overview on the legal situation see this article in the New York Law Journal.

Or this article from A Walk in the Park.

Round-Up of Recent Articles and Blog Posts on the Artists/City Standoff

 
"Union Square Showdown: Holiday Market Versus Art Vendors"
DNAinfo - December 21, 2010 - By Amy Zimmer

“Artists at Union Square say city is a portrait of hypocrisy with holiday market”
New York Daily News - December 19, 2010 - By Adam Lisberg
 
“City Blocked Again From Enforcing New Artist Vending Rules In Parks”
A Walk in the Park - December 20, 2010 by Geoffrey Croft
 
“Artists, City Duel on Rules”
Wall Street Journal - December 18, 2001 - By Pia Cottan

Breaking News: Appellate Judge Issues Interim Stay Blocking Enforcement of New Park Rules; Artists to Work Through the Holiday Season

In a dramatic turnaround, just one day after a New York State Supreme Court judge ended a Temporary Restraining Order and denied a motion for a Preliminary Injunction blocking the enforcement of new NYC Parks Department Rules, Justice Peter Tom of the Appellate Division, First Department, issued a new Interim Stay that will effectively allow artists to continue working in four key New York City parks through the holiday season. The decision came late yesterday evening, December 16, 2010, after arguments on an emergency motion filed by the artists’ attorneys, Phillips Nizer LLP.

Reached today by phone, attorney Jeffrey L. Shore, litigation counsel with the Phillips Nizer team, stated that the interim stay will be in effect at least through January 7th. Whether that stay is continued past that date will depend on Justice Tom’s full decision on the motion to block enforcement of the new park rules till the appeal of trial court’s December 15, 2010 denial of a preliminary injunction is settled, possibly sometime later in January. A Phillips Nizer press release dated today, December 17th, states that they believe that there are “at least six legal errors” in that decision.

Judge Denies Preliminary Injunction; New Park Rules To Be Enforced for Now

Judge Milton A. Tingling, Jr. of the New York State Supreme Court has ruled against a Preliminary Injunction in the Dua et al v. NYC Parks Department case. The judge also vacated the temporary restraining order against the city issued on August 25, 2010, almost four months ago. That means that the Parks Department's new rules dramatically restricting the ability of artists to work in four New York City Parks (Central Park, Union Square Park, Battery Park and the High Line) will go back in effect.

Although the ruling is clearly not a good sign for the artist plaintiffs, the judge, writing in an eleven page decision, did indicate areas still open to argument as the case moves forward. He called the City's assertions that the rules were created to prevent congestion and address issues of park aesthetics "somewhat specious" and stated that there was "insufficient evidence adduced at this time to confirm or deny" the artist plaintiffs' claim that congestion and aesthetics are "merely pretextual." The case will continue in February as will two other cases filed by artists in Federal court.

Robert Lederman, president of the street artists organization A.R.T.I.S.T., has provided the following link to the compete text of Judge Tingling's ruling:

http://www.scribd.com/doc/45350354/Dua-v-City-of-New-York-12-8-10-State-Court-De\ cision-Denynig-Preliminary-Injunction

More commentary to follow soon.

NY State Court Issues Temporary Restraining Order Against Park Rules

New York State Supreme Court Justice Martin Schoenfeld has issued a five day temporary restraining order blocking the enforcement of the new park rules, effective immediately.

According to Robert Lederman, president of one of the street artists' organizations, A.R.T.I.S.T., " The injunction prevents the Parks Dept from enforcing the decal marked spots and the numerical limit on artists but does NOT stop them from enforcing the new restrictions in the new rules on distance from trees, monuments, benches, the width of a sidewalk and exigent circumstances."

Judge Schoenfeld has also ordered a "Show Cause Hearing" for Monday morning, August 30, 2010 to hear arguments in the case and to decide on whether to extend the injunction.

See more in Albert Amateau's article in today's Villager: "Art Vendors Suit: Regs are unfair to women, elderly."

To see a copy of the injunction click here: http://www.scribd.com/doc/36456382/State-Court-Temp-Injunction

Private Real Estate and Public Parks

Why? Why did the New York City Parks Department create new rules to restrict artists’ access to public parks? Who would want that to happen?

Today’s New York Times gives us a glimpse of who might have an interest. Directly linking private real estate property values to public parks, the article, “As a Park Runs Above, Deals Stir Below” by Alison Gregor, focuses on equity developments in proximity to the High Line, one of four NYC parks effected by the new park rules. The other parks are Battery Park, Union Square Park and the southern half of Central Park.

Of particular note, not mentioned in the article which doesn’t discuss artists at all, is that the High Line was the site of the first of the recent crackdowns on artists by the Parks Department: the illegal arrests of A.R.T.I.S.T. president Robert Lederman and artist Jack Nesbitt in November and December 2009. The Parks Department was forced to settle out of court for an undisclosed sum.

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.

New Article includes Portrait Exchange Photos and Quotes in Discussion of Revised NYC Park Rules

Journalist Leslie Koch's new article "Artists sue Mayor Bloomberg, NYC Parks Department over new regulations" features two photographs by Robin Randisi from the Central Park Portrait Exchange and quotes from Peter Walsh.

From the article:
"Two street artists filed a lawsuit on Friday accusing the Parks Department of violating artists' constitutional rights by restricting the number of art vendors in four popular Manhattan parks.

Artists Robert Lederman and Jack Nesbitt filed a lawsuit against Mayor Bloomberg, Parks Commissioner Benepe and the Parks Department on Friday June 18, 2010 in response to new regulations on art vendingin city parks.

Mayor Michael Bloomberg and Parks Commissioner Adrian Benepe were named as co-defendants.

When the new rules go into effect on July 19, over half of vendors who sell "expressive matter" will be shut out of Central Park, Union Square Park, Battery Park and the High Line Park.

This includes artists who sell their own paintings, sculptures, prints, photographs and books.

"I spoke to more than 100 park artists the day after the rules came out. Not one expressed agreement with the new rules," said plaintiff Robert Lederman, 59, in an email.

Lederman is the president of advocacy group ARTIST (Artists' Response To Illegal State Tactics). He and co-plaintiff Jack Nesbitt, 70, have repeatedly clashed with the Giuliani and Bloomberg administrations over the right of artists to sell their work in public spaces.

Their lawsuit alleges that "the real purpose behind the Revision is to rid the parks of artists and independent written matter vendors in order to give preference to corporate vendors."

For the complete text go to: "Artists sue Mayor Bloomberg, NYC Parks Department over new regulations"

NYC Parks Department Sets New Rules, Artists Sue To Block Enforcement

From Robert Lederman, the president of the street artist group, A.R.T.I.S.T.:

"June 18, 2010 - The Parks Department has finally published the revised Park rules for artists in the City Record. There are no more hearings. It is now the law in parks. Enforcement will begin in 30 days.
[....]
A lawsuit was filed today which seeks a temporary injunction to prevent the rules from being enforced in 30 days. The initial plaintiffs are myself and Jack Nesbitt. Other artists are also planning to file their own separate lawsuits."

For the complete announcement from Lederman and A.R.T.I.S.T. go to:
http://groups.yahoo.com/group/NYCStreetArtists/message/1689

For the full text of the New Rules: http://www.nycgovparks.org/sub_about/rules_and_regulations/rr_rules_regulations.html

To see the New York Times article, which makes no attempt to ask any artist their thoughts or opinions, go to:
http://www.nytimes.com/2010/06/18/nyregion/18vendors.html