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Artists Defeat
Giuliani in Court
...Again

by Robert Lederman

robert.lederman@worldnet.att.net
December 28, 2001

Artists Defeat Giuliani in Court...Again

As he leaves office Mayor Giuliani has been handed yet another rebuff from the court system over his eight year campaign to take away the First Amendment rights of NYC street artists. The Mayor’s appeal to the NY State Supreme Court in a long-standing criminal case, People v Balmuth and People v Christiano, has been denied.

In an order published on 12/27/2001 NY State’s highest court ruled, "There is no question of law presented which ought to be reviewed by the Court of appeals and permission is hereby denied."

Balmuth and Christiano are A.R.T.I.S.T. members and plaintiffs in Lederman et al v Giuliani, a lawsuit that was decided in favor of the artists by Federal Judge for the Southern District of NY Lawrence McKenna on July 7, 2001. Judge McKenna is the same judge Mayor Giuliani openly criticized in his farewell speech on 12/27 for preventing the police from arresting homeless people who were sleeping on the steps of a Fifth Avenue church with the church’s express permission.

In his speech Giuliani stated,

"All of those things have to be dealt with, all of them have to be dealt with differently. None of them are helped by ignoring homelessness, by doing the kind of thing that the judge allowed last week. That's cruel. He doesn't think it's cruel. But he's having a hard time thinking through the ideology that he brings with it to analyzing his decisions. It's a cruel thing to do to have people laying on the street. It's a much kinder, more generous, much more mature and much more responsible thing to go take them, try to help them and put them in facilities where they can get help, which is what we've done and what really has to continue if we really, really care about people."

Since becoming Mayor in 1994 Giuliani has ordered thousands of homeless people arrested and put through the system for doing nothing more than sleeping on the street.

People v Balmuth and Christiano was part of the second wave of artist arrests initiated in 1998 by the Mayor and Parks Commissioner Henry Stern after artists won two earlier Federal lawsuits against Giuliani, Bery et al v City of NY and Lederman et al v City of NY. The earlier lawsuits involved a license requirement to sell art on the street. From 1994 until 1997 more than 1,000 artists were arrested and had their artwork confiscated by the NYPD, which later sold the art at auction or destroyed it.

After unsuccessfully appealing the 2nd circuit appeals court ruling granting street artists full First Amendment protection and exemption from any license or permit all the way to the U.S. Supreme Court and claiming in his legal briefs that visual art was unworthy of First Amendment protection because it did not express ideas, the Mayor and Commissioner Stern retaliated by created a second illegal licensing scheme involving a permit for artists to sell in or within 350 feet of any NYC park.

During a sixty-five day protest outside the Metropolitan Museum of Art in 1998 more than 100 artists were arrested and charged with a variety of crimes, including not having an artist permit. Every arrest case was ultimately dismissed.

While the Federal lawsuit challenging the permit requirement made its way through court, Manhattan Criminal Court judge Lucy Billings issued a detailed ruling in People v Balmuth and Christiano in 1998 overturning the requirement on the grounds that it violated a 1982 NYC law exempting First Amendment protected book vendors and artists from any license or permit requirement anywhere in the City.

Mayor Giuliani was so infuriated by the Judge’s ruling that he removed her from the Criminal Court system. Since then, four different rulings have been issued by the State and Federal courts confirming judge Billing’s ruling. The City is still seeking to overturn Judge McKenna’s ruling by appealing Lederman et al v Giuliani to the 2nd circuit Federal Appeals Court.

Apart from their value to artists, the greater significance of all of the street artist rulings issued during the past eight years is that they expose the real nature of the Giuliani administration. Before any artists were arrested the Manhattan D.A. and Giuliani’s Corporation Counsel researched the issue and issued internal memos which were later recovered in the discovery process of the various lawsuits. Those memos, circulated throughout the City’s various legal departments, stated that artists were in fact fully protected by the First Amendment and that none of the cases could ever be prosecuted. Not one case ever was.

Knowing this, the Mayor nevertheless ordered thousands of artists arrested, had their original art confiscated and destroyed or sold at auction and spent millions of dollars processing their criminal cases and defending against the lawsuits that were filed. In a legal brief filed in 1997 in Giuliani v Lederman, "America’s Mayor" attempted to get the U.S. Supreme Court to remove First Amendment protection from all visual art.

The Mayor’s vendetta against street artists predated his campaigns against squeegee guys, the homeless, jaywalkers, taxi drivers, topless bars, community gardens, welfare recipients and art museums. When he became frustrated that none of the arrests for failure to have a vendors license or artist permit could be prosecuted, he ordered the police to begin charging artists with more serious offenses.

My own case is a classic example of how the Mayor’s false arrest policy worked. From 1994 until the present date I’ve been arrested more than 40 times and charged with a wide variety of offenses including, disorderly conduct, obstructing governmental administration, inciting to riot, resisting arrest and defacement of property. I’ve also received more than 50 additional Criminal Court summonses related to these charges.

Not one case or one summons ever resulted in a fine, a conviction or a plea bargain. Most of my arrests involved NYPD captains, the NYPD Intelligence Division, Deputy Mayors and lawyers for the NYPD accompanied by as many as 100 lower ranking police officers. Some of the cases took as long as three years of monthly court appearances before they were finally dismissed. The Mayor racked up millions of dollars in legal fees, police overtime and court costs from my cases alone, and I am just one of hundreds of artists who were subjected to the same illegal policy.

The rulings in Lederman et al v Giuliani and People v Balmuth and Christiano have another interesting and ironic wrinkle. The original 1982 law, local law #33, which exempted book vendors from needing any license or permit and which was later expanded by the Federal Court to include street artists, was drafted in part by City Council Member Henry Stern, Giuliani’s Commissioner of Parks. Stern stubbornly insists to this day that the law does not say what four different courts have ruled that it does and that he was actually, "trying to help artists.".

A number of news reports and links about these cases follow.

The first street artist lawsuit against Mayor Giuliani

See here

Click on “Street artists are legal: Entire text of the Bery decision of the U.S. Court of Appeals for the Second Circuit“ (Argued: April 26, 1996 Decided: October 10, 1996)

Lederman at al v City of NY; Bery et al v City of NY

UNITED STATES COURT OF APPEALS

The second street artist Federal lawsuit against Giuliani ((the Parks Dept. artist permit case Lederman et al v Giuliani)

For the text of the complaint (it has since been amended numerous times) see here.

Click on: “New legal complaint filed in Federal Court against Mayor Giuliani. Details the charges of constitutional violations (9/5/98)

For Judge McKenna’s ruling in Lederman et al v Giuliani see here.

Click on: “Court ruling from Lederman essay below” here.

"An exhibition of paintings is not as communicative as speech, literature or live entertainment, and the artists' constitutional interest is thus minimal." -Giuliani appeal brief against street artists having First Amendment protection, Giuliani’s appeal brief in Giuliani v Lederman et al and Giuliani v Bery et al, filed with the U.S. Supreme Court 2/24/97.

NY Post editorial on the Billings Decision

"Thanks to Mayor Giuliani's quality-of-life program, New Yorkers no longer have to step over quite so many vagrants in order to enjoy the greenery of New York's parks or the aesthetic stimulation of the Metropolitan Museum of Art. Unfortunately, thanks to Manhattan Criminal Court Judge Lucy Billings, they might now find themselves navigating their way around hordes of self-described "artists" who think it's appropriate to liken politicians they oppose to Hitler." NY Post Editorial 8/20/98 "Free Speech or Free Exhibition Space?"

NY TIMES December 28, 2001

[Note: Mitchell Balmuth is a defendant in this Criminal Court case, not a plaintiff as the Times article incorrectly states. He and Pat Christiano are plaintiffs in Lederman et al v Giuliani]

Artists Win Court Battle to Sell Their Works Outside Museum

By RICHARD PÉREZ-PEÑA

ALBANY, Dec. 27 — “Among the many legacies the Giuliani administration will leave when it ends its eight-year run in New York City on Monday is a history of choosing fights, then losing them in court.

Add another to the list. Today, New York State's highest court rejected the administration's effort to limit the number of artists who sell their work outside the Metropolitan Museum of Art, and to require them to get city permits to set up shop there.

The Court of Appeals declined to hear the city's appeal in the case, leaving in place a lower court victory by the artists who, in warm weather, turn that stretch of Fifth Avenue sidewalk into a hodgepodge gallery of street scene photographs, skyline watercolors, abstract oils, instant portraits and Chinese calligraphy.

"It's been a long fight, but we were confident we were going to win," said Mitchell Balmuth, the lead plaintiff in the case, who was forced to stop selling works painted by his wife, Soo. "They violated our rights. They did it with a vengeance."

Henry J. Stern, the New York City parks commissioner, who was the primary force behind the policy, said, "I still believe that the untrammeled and unregulated sale of merchandise on city streets is inappropriate, and calling it art does not give it some sacred status."

Time and again, Mayor Rudolph W. Giuliani and his administration adopted policies that were later struck down. Judges have ruled against the city for, among many other things, cutting off funding for the Brooklyn Museum in retaliation for a show there, limiting the number of protesters who could gather on the City Hall steps, removing people from the Medicaid rolls, barring people from homeless shelters if they did not participate in workfare, trying to block funding for an AIDS group that had criticized the mayor, and making it harder for qualified people to obtain food stamps.

Mr. Giuliani has also lost several rounds when he was the one suing, as when he challenged the state's repeal of the city's commuter tax, a state law changing the way police pay disputes are decided, and the city's campaign finance law.

The artists' case began almost four years ago, when the Department of Parks and Recreation adopted a regulation limiting the size of the artists' bazaar outside the Metropolitan, which, the city said, attracted as many as 100 vendors some days. The department had jurisdiction because the sidewalk is legally a part of Central Park. The rule limited the artists to 24 at a time, and required them to pay $25 a month for permits issued by lottery.

At the time, Mr. Stern said the artists impeded both foot traffic and the museum's renovation efforts. The museum said it had not requested the change, and refused to take sides in the dispute.

Parks enforcement officers and, to a lesser degree, city police officers seized artwork and issued tickets with fines up to $1,000. Artists held several loud protests and were arrested by the dozens.

The artists were not allowed to return to the area outside the museum until last summer, after a series of favorable court rulings. They say most of their works were never returned, a contention city officials said they could not immediately confirm or deny.

In addition to the suit filed in state court, artists filed two suits against the city in federal court, in part on free-speech grounds, seeking damages. In one of those cases, a judge ruled in August that the city acted illegally, a decision the city is appealing.

The artists' case rested on a 1982 city law that exempts people selling "written matter" from any permit requirement imposed by the city. In 1996, a federal appeals court, in response to earlier attempts by the Giuliani administration to limit street sales of art, ruled that the city law applied to artwork, as well.

Mr. Stern said that in hindsight, the administration should have tried to amend the 1982 law. "Whether to do that is a question now for the Bloomberg administration," he said.

Daily News 12/28/2001

City Art Permit Plan Gets Brush in Court By JOE MAHONEY

Daily News Albany Bureau Chief ALBANY

“Vendors who sell artwork outside the Metropolitan Museum of Art and other public spaces got a bright green light yesterday from the state's highest court.

In a defeat for the Giuliani administration, which wanted to require that the artists buy $25 permits, the Court of Appeals refused to overturn a lower court ruling that blocked the city's plans.

"This is a great victory for the art vendors," said Manhattan lawyer Robert Perry, who defended two artists arrested in 1998.

Officials at City Hall and at the office of Manhattan District Attorney Robert Morgenthau, which prosecuted artists who defied the permit requirement, had no immediate comment.

"Even though this case wasn't decided on free speech grounds, it's an important First Amendment victory because the permit scheme was prior restraint," Perry said.

The fight against the city's permit rules began in 1998, when three artists — Mitchell Balmuth, Patrick Christiano and Gilbert Oh — were arrested near the museum in a Parks Department crackdown on artists who failed to buy permits.

The charges were tossed out by Manhattan Criminal Court Judge Lucy Billings, who said, "New York City, in particular, has a long history and rich tradition of fostering freedom of expression in the arts and vindicating those rights."

NY Times August 11, 2001

Judge Bars Permit Requirement for Art Vendors

By KATHERINE E. FINKELSTEIN

Photo: Robert Lederman, at the microphone, is among the artists who sued to challenge the city's rule requiring permits to sell works outside the Metropolitan Museum of Art.

“A federal judge has ruled that the Giuliani administration's requirement that art vendors in parks have permits is a violation of the city code, which unconditionally prohibits mandatory licensing for those who sell art and books.

The decision, issued Aug. 7 by Judge Lawrence M. McKenna of United States District Court in Manhattan, did not delve into whether the city's actions violated the artists' constitutional right to free speech. But in multiple lawsuits and legal motions that the artists have won in state and federal courts, they have argued that their rights to free speech were being restricted.

The decision, which the city vowed yesterday to appeal, affects street artists who display their work in parks or on adjacent sidewalks, including those at the Metropolitan Museum of Art, which are part of Central Park. Their legal battle began in 1998 after the police began issuing summonses to those without permits. The conflict escalated into street protests and arrests, and the police confiscated some artwork.

Yesterday, a group of the artists gathered outside the Metropolitan Museum to celebrate the decision. Holding an unflattering painting of Mayor Rudolph W. Giuliani, Robert Lederman, one of the artists, said that the legal victory protected the rights of everyone from leafleteers to media magnates whose papers are sold in vending boxes, which require no permits.

"Our efforts continue to make this city a place where artists can enjoy the freedom to create, display and sell their works," he said, "and this most essential of human freedoms can continue to be enjoyed by all New Yorkers."

The federal decision came on the heels of a state decision last week that also favored the artists. A state appeals court affirmed the decision of a judge in State Supreme Court in Manhattan who dismissed criminal charges against two artists who were given summonses for selling artwork without a permit.

The Manhattan district attorney's office has decided to appeal that decision also, according to city officials. The officials acknowledged that after the state decision last week they told the police and the Parks Department, which has jurisdiction over the space, to stop issuing summonses to the artists.

Yesterday, city officials characterized the defeats in state and federal courts as the result of confusion over the interpretation of the city code. The parks commissioner, Henry J. Stern, called the case "a highly technical decision dealing with effect of administrative code on park-related matters."

But he said that the Parks Department hoped to impose "reasonable regulations" either through legal remedy or some amendment to the city code. Currently, he said, "the unregulated commercial sale of art in public parks is inappropriate and intrusive."

A lawyer for the city, Robin Binder, said last night, "The city thinks the decision is wrong and intends to appeal." The city can appeal to the United States Court of Appeals for the Second Circuit and beyond that to the United States Supreme Court.

Both sides seemed poised for further legal fighting yesterday. At the Metropolitan Museum, one of the artists, Wei Zhang, said that he had come from China, a country without human rights or free speech. After getting here, he said, the Giuliani administration had him arrested and confiscated his paintings. "I come to the wrong place again,' " he said.

The discord began in March 1998, when the city began to try to regulate the cluster of street artists outside the Metropolitan Museum and began issuing 24 permits a month — at $25 each — to those selling their work there. The fine for those selling works without permits was $1,000.

When the artists organized protests, singing and likening Mr. Giuliani to a dictator, the police started arresting them, leading a number of them away in handcuffs. Officials from the Metropolitan Museum said at the time that they did not have any complaints with the artists.

The artists organized a group, Artist, an acronym for Artists' Response to Illegal State Tactics, and demanded that the state abide by a 1996 federal court decision that was the first to reject the city's efforts to license artists. Their protests and the arrests continued, and the lawsuits began as they fought what they called restrictions on their freedom.

In August 1998, Judge Lucy Billings of State Supreme Court in Manhattan dismissed the charges against several of the artists, ruling that city law prevented the licensing of book and art vendors. She quoted a 1982 City Council law that said, "It is consistent with the principles of free speech and freedom of the press to eliminate as many restrictions on the vending of written matter as is consistent with the public health, safety and welfare."

While the city appeals, one of the lawyers for the artists, Robert Perry, said his clients might go to trial to get damages for the restriction on their livelihood.

Meanwhile, the artists seemed to be doing a brisk business selling postcards that depicted Mr. Giuliani in various monstrous guises.”

NY Times August 17, 2001 PUBLIC LIVES

End Draws Near for Mayor's Artful Adversary

By ROBIN FINN

Photo: Michelle V. Agins/The New York Times

“Evidently a first-rate muse is, like beauty, in the eye of the beholder. Picasso had his mistresses. Warhol had a soup can. Robert Lederman, a canny street artist who has waged three federal lawsuits for his First Amendment rights to display his art and opinions in the public eye, has Mayor Rudolph W. Giuliani. But only for four more months.

Come December, Mr. Lederman, whose best- known works (caustic caricatures of a vampire- like mayor in dictatorial guise) hang outdoors on the sidewalks adjacent to the Metropolitan Museum of Art rather than inside, will lose his muse of eight years to term limits.

What a mundane way to go. Mr. Lederman, with a group of 400 artists he has led since March 1998, successfully sued the city in State Supreme Court that August — after Mr. Giuliani tried to shrink their Met marketplace by issuing only 24 permits, imposing a monthly fee and arresting scofflaws. The latest chapter in street artists vs. Giuliani, a battle that Mr. Lederman claims has cost city taxpayers millions in legal fees, was decided Aug. 7 in United States District Court in Manhattan; again, the artists prevailed, and again, the city vowed to appeal.

"I'm using art as a weapon against a tyrant, and when this is all over, I'm probably going to have a hard time going back to making the nice picture to go over somebody's couch," says Mr. Lederman, 50, very much the bohemian in his paint-splashed sandals, T-shirt and shiny synthetic track pants that will never come close to running track. He has no time for hobbies; when he is not dashing off Giuliani caricatures in the oppressive clutter of his Brighton Beach studio or on the hood of his car, he is in court.

So he is not sure whether it pains or pleases him to soon lose a mayor whose visage has inspired a thousand paintings and earned him thousands in sales. Rudy postcards go for $1 apiece, Rudy posters for $10, and Rudy originals, except for the hundred or so Mr. Lederman says were confiscated by the Police Department acting on orders from his nemesis, command up to $1,000. Who buys them? Everybody. Tourists, lawyers, left-wing types, off-duty police officers, even fans of Mr. Giuliani (the artist's favorite customers because they're potential converts).

Speaking of the police, he is certain he won't miss those scary sleepovers in the Tombs after being arrested. But Mr. Lederman admits that he goes out of his way to attract the mayor's ire, often displaying his wares next to Mr. Giuliani's entrance at City Hall. The artist seems to share his muse's knack for self-aggrandizement. With a mix of spite and admiration, he calls Mr. Giuliani a public relations genius, but he is not so bad at playing the game himself. So what if his masterly works aren't in the Met. His art has appeared in People magazine three times; talk about exposure.

He says Mr. Giuliani has taken the bait and dispatched the police to arrest him 41 times, which does not include the hundred or so summonses that he has been issued since the mayor, as part of his quality-of-life campaign, tried to lump street artists with hot-dog vendors and squeegee wielders, and censor their squatter's rights to a niche in the urban landscape.

"It's been a war since 1994," says Mr. Lederman, slender and strident with a graying beard and a glib speaking manner. "He made it a war. I never sued anybody before Giuliani. I had no real interest in politicians. The ironic thing is that now, thanks to Giuliani, my art has been seen by half the world. I've got a cable show, a Web site, radio and TV spots, articles everywhere, and I've become a recognized expert on First Amendment rights. I've written my own court appeals. How did I learn to do all this? I went to Giuliani U."

In a crumbling Brighton Beach apartment crammed with Giuliani canvases and monster figurines, Mr. Lederman lives with his companion of eight years and their young son, both of whom he refuses to identify because of his having cultivated "a lot of enemies" during contretemps with Mr. Giuliani. He recollects being spit on, and being threatened by a man with a screwdriver who took exception to his art on a SoHo sidewalk in 1999. Altercations like this didn't happen back when he was homeless in the East Village in the 1980's selling street scenes and a self-published pamphlet of poems and woodcuts, "Urban Archtypes."

He says he was evicted from his previous home in Park Slope after taping a poster of Mr. Giuliani to a front window to protest malathion spraying during the 1999 mosquito scare — he contends that the spray gave him asthma, even blames it for the mayor's prostate cancer, and he is a litigant against the city in the No Spray Coalition. He marvels that his graduating class at Tilden High School in Brooklyn produced two such lively activists as himself and the Rev. Al Sharpton.

The Brooklyn-born Mr. Lederman was 12 when he sold his first art, portraits of movie stars, outside Dubrow's deli on Kings Highway; he used the proceeds to buy monster movies on 8-millimeter film (he wanted to be a director). His father, Paul, was a commercial artist whose unsigned work appeared everywhere from cigarette ads to Elvis posters; when Mr. Lederman left home at 17 to be a street artist, his father disapproved.

Mr. Lederman has long had dicey relations with authority figures. But he is saving all his Giuliani art, and not out of sentiment: "I figure he'll be back in 2005, just like Schwarzenegger."

To a Directory of Mr.Lederman's Essays

Robert Lederman is an artist, writer and activist and is also the President of the street artist advocacy group, A.R.T.I.S.T.
Click here for an archive of A.R.T.I.S.T. related news articles on the Freedom Forum website

His essays and Op-Eds have appeared in hundreds of alternative publications as well as the Daily News, Penthouse, Africa Sun Times, Street News and The Shadow.
Lederman was falsely arrested 41 times for his anti-Giuliani activities and was never convicted of any of the charges. As a result of the arrests, he's won four Federal lawsuits and overturned three laws.
He is best known for having created hundreds of paintings of Mayor Giuliani as a Hitler like dictator which were carried in demonstrations throughout the eight years of the Giuliani administration. Images of his paintings and articles about his arrests and lawsuits have appeared on all of the major television networks hundreds of times as well as frequently appearing in the NY Times, Daily News, NY Post, Newsday, Newsweek, People, The Washington Post, LA Times and NY Magazine.

Robert Lederman,
President of A.R.T.I.S.T.
(Artists' Response To Illegal State Tactics)
robert.lederman@worldnet.att.net

For a detailed exposition on the West Nile issue
http://www.nospray.org/
For an article on the Manhattan Institute go to
http://www.konformist.com/2000/rudyg.htm

If you would like to help oppose the spraying,
please write to the
No Spray Coalition
PO Box 334
Peck Slip Station
NYC, NY 10272-0334
or call the No Spray hotline at (718) 670-7110.

Any funds you can send to help continue the lawsuit
and this work are greatly appreciated.

Important Note:
Mr. Lederman has explained that his articles posted here are not to be taken as official statements by the No-Spray Coalition of which he is a member or of the "No-Spray" lawsuit in which he is a plaintiff.

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