Volume 80, Number 7 | July 14 -21, 2010
West and East Village, Chelsea, Soho, Noho, Little Italy, Chinatown and Lower East Side, Since 1933

Villager photo by Lincoln Anderson

Artists won’t be put on spot; Vending rules go into effect

BY Albert Amateau

A federal judge last Friday denied artists a preliminary injunction against new rules that limit the number and locations of First Amendment-protected vendors in four Manhattan parks: Union Square, the High Line, Battery Park and parts of Central Park.

As a result of the decision by Judge Richard Sullivan, the new rules went into effect on Monday and will continue unless the two related lawsuits seeking to permanently enjoin the rules are successful.

But more than 100 artists turned up in the south end of Union Square on Monday, waved signs and ignored the rules legally while police and Parks Enforcement Patrol officers looked on.

Under the new rules, 18 locations in Union Square Park marked by small plastic medallions designate where “expressive matter” can be sold. Protesting artists on Monday, however, paid no attention to the medallions. They took advantage of the fact that the new rules do not apply to wandering art vendors who do not stay in one place any longer than necessary to transact a sale. The rules also do not apply to artists who display their art but do not sell it.

Robert Lederman, president of A.R.T.I.S.T. (Artists’ Response to Illegal State Tactics) and co-plaintiff in one of the two federal court lawsuits seeking to overturn the new regulations, promised more demonstrations.

“We’re going to stay in this park and away from the marked spaces. We’re going to defy the mayor and we’re going to defy the Parks Department,” said Lederman.

Artists also protested that the locations of the designated vending spots adjacent to the streets on the east and west sides of the southern end of Union Square Park were dangerous.

“It shows how little good faith the Parks Department has on this issue,” Lederman said.

A spokesperson for the Parks Department said the vendor locations would be reviewed over time with a view to adjusting them.

Julie Milner, attorney for Lederman and A.R.T.I.S.T., said the court case “was moving on a fast track.”

In addition to the 18 expressive-matter vending locations in Union Square, the new rules designate 40 more locations on Tuesdays, Thursdays and Sundays when the Greenmarket does not occupy the north and west plazas of the park.

In Battery Park the vending rules specify nine vending locations for expressive matter.

On the elevated parts of the High Line Park, the rules specify five artist vending spots.

Around Central Park south of 86th St. (including in front of the Metropolitan Museum of Art and at Columbus Circle) the rules set out 68 expressive-matter vending sites.

For Lederman, the current lawsuit revisits familiar ground. In 1994 he and other artists sued in federal court to overturn the rule that all vendors except booksellers had to get a general vendor’s license in order to sell their wares in any public place. It was the first of several similar lawsuits won by Lederman, including one that went to the U.S. Supreme Court, against limits to the vending of expressive matter protected by the First Amendment.

Lederman last week noted that all of the actions that he eventually won had an initial setback with a denial of a preliminary injunction.

The Parks Department established the new rules after finding that, since 2001, the number of expressive-matter vendors in Union Square, Battery Park and Central Park tripled over the years. The increase, according to Parks, has resulted “in congested conditions…especially for those seeking to enter a park, as well as crowding out other park users.”

In March, the department proposed new art-vending locations in those three parks, plus on the new High Line park because of its narrow configuration and winding pathways among planting beds on the West Side railroad viaduct.

The final rules published in the City Record on June 18 somewhat expanded the number of vending locations that were the subject of a hearing in April.

Lederman and his co-plaintiff, fellow art vendor Jack Nesbitt, filed their federal lawsuit on June 19. On July 7, Diane Dua, a member of another artist vendors group, Artists United, filed a similar suit.

Judge Sullivan denied the preliminary injunction, finding that the rules are “completely unrelated to the content of the expressive matter being sold.” The judge also accepted the Parks Department contention that the different treatment of expressive-matter vendors was based on congestion, and that the locations promote “a significant government interest.”

Sullivan also said that artists who miss out on assignment to a designated spot in the four parks could find ample — if less lucrative — alternative channels in “Prospect Park, Riverside Park, Tompkins Square Park or any one of hundreds of other places in the city.”

He cited a previous court ruling that “The First Amendment does not require that New York City permit plaintiff to sell their work directly to the public in an ideal venue.”

Sullivan conceded that the plaintiff might eventually be able to win the case by showing evidence that the city’s congestion reasons are a pretext or that the rules do not advance the stated goals.

Lederman also claims that the rules target him in particular because of his being a thorn in the side of City Hall for many years. Lederman and Nesbitt won a cash settlement from the city upon the settlement of a false-arrest lawsuit in connection with their arrest in November, before the new rules existed, for vending their art on the High Line.

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