We were once a group of visual artists who displayed and sold our works in non traditional venues, i.e. the streets and plazas of St.Augustine Florida,the oldest City in The U. S. Local laws have been passed in defiance of the First Amendment.There are no longer street artists in St. Augustine, Florida
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Here's an old St. Augustine tour guide joke...."DON'T STEP ON THE GRAVES !"
(see brick upper left)
As you walk the streets of the nation's oldest city you will see four or five various brands of brick below your feet. There's an old story that ,back at the turn of the century, St. Augustine benefactor and promoter Henry Flagler offered the City of St. Augustine, pallets of brick to pave the streets.When the city was slow to accept, Henry simply had them delivered and they were set down at the locations he wanted paved. The city supposedly relented and laid the bricks as Flagler wished.
The recent completion of the Aviles St. rehab had city workers carefully replacing these old bricks as it was back in 1900. Not long ago a portion of St. George Street was also repaved with brick.Here is a story about the Southern Clay Mfg. of Robbins, Tennessee and a story by Peter Guinta of the St. Augustine Record.
The work of producing brick was a backbreaking process done mostly by African American workers making 1.50 a day in the 20's and 30's The employees were forced, by company policy , to purchase their household needs at the "company store".They were also charged rent for the company owned shotgun houses with no running water. Many ended up in debt to the company, playing catch up when the monthly bill arrived. Southern Clay shut down operations in 1939.
Our city's history is all around us. In the foliage, in the people, the buildings and underfoot.African American contributions are plenty and are only now, beginning to be recognized as it should.
The other day I had a conversation with a contender in the upcoming City Commission race. He had taken an informal survey of citizens and merchants regarding their attitude towards art vendors and street musicians.Here at Art In The Market we have little discussed the street musician issue since there is a different set of Constitutional laws regarding the ability of governments to control and restrict their activity. This has mostly to do with intrusive noise. That said, contrary to what some think, we street artists enjoy street musicians and wish them well in any attempts to stand up for their rights. We visual artists simply cannot take them to court with us since our case cites previous decisions involving visual speech (art).
The City Commission candidate brought up some points that we sometimes miss being so myopic regarding our own cause. Much of it has to do with the economics of our enterprise. Amongst the artists we have always agreed not to discuss money with "outsiders" (the press, the police, the politicians etc.) Here we will dispense with that for illustrative purposes.The discussion is paraphrased below.
Can the artists work out an arrangement with galleries? Yes, galleries are always looking for new artists and inventory but consider this...As an artist who sells our work on public property we feel that not only is this the best way for others to see our work but it is also, and many won't understand, a philosophy that this outdoor vending is also part of the message. Those who would never consider going into an art gallery will see our work. Our artworks are affordable and many times, particularly in a younger person's case, this would be the first time they have bought art for themselves.
We have many galleries in town and they serve a purpose, but frankly, very few local artists will be found in the high traffic art galleries. The cooperative galleries tend to be physically removed to affordable rent areas. A working artist cannot hope to sell enough to keep body and soul together much less recover the cost of producing artworks.Our profit margins are slim and paying commission to a floor salesman and the gallery would be prohibitive.
Would the artists accept an application/permit process if there was no cost involved?No, other than our sales tax license that permits us to collect state sales tax. This is a point that we cannot stress enough. A fee is a tax and the Federal courts have ruled that you cannot tax First Amendment activity.Visual art is symbolic speech. The very term "permit" implies that it can be withheld or withdrawn. The courts have also held this to be a "prior restraint". In other words, asking permission to express your ideas is anathema to our U.S. Constitution. Being photographed and forced to wear a badge identifying the artist as a "Street Performer" is laughable at the least. The current permit process is changed and interpreted at whim by the clerks in the City Finance office. For instance there is a 3.5 hour window when you must get to the office to pay for your licence if you are lucky enough to win in a lottery held on the 20th of every month. You cannot call on the phone to find out if you have "won" but must physically go to the office. The fee that is annualized to 900 dollars a year is by far the highest price fee in the country coming in first over Key West's 200 dollar annual fee (under challenge at this time) that gives an artist a 30 day window to apply. So.....this illustrates the danger of permits for free speech and is bureaucracy's way of eliminating the chance for many to exercise what is a fundamental right.
Much of the public feels that displaying your art is OK but selling it makes this "commercial" therefore it can be restricted by government. Yes it can, and should. We have never denied the city's right to place restrictions upon our activity. Reasonable time place and manner rules are not only needed but welcome. The key word that is rarely heard from city legal counsel is "reasonable".Would a visual artist simply set up his art in an innocuous manner simply to show it to people? Might be fun, but as the courts have ruled "It is well settled that a speaker’s rights are not lost merely because compensation is received; a speaker is no less a speaker because he or she is paid to speak” 1988 Riley vs. National Federation of the Blind North Carolina, 487 U.S. 781, 801. Just as a newspaper collects the dollar to print more papers, the artist creates new work from the sale of other works.
The artists in St. Augustine did not create these decisions from the Federal Courts. They have been tested in court and well settled. We are asked often, "How does the City of St. Augustine get away with ignoring Federal law?" They simply rewrite another faulty ordinance after they lose in court defying the artists with limited means to go back into court. When one sitting city commissioner was told that if we cannot reach a Constitutionally valid agreement we will be forced to go back into court. Her reply was, "To what end? What would that accomplish?" Either she was warning us that the city would continue to rewrite illegal ordinances or she is clueless to the fact that we are fighting for the right of visual artists to survive in the nations oldest city.
It is a no-brainer that law enforcement officials should apply common sense in enforcing the laws of the state of New York. Sadly, that is not always the case. A classic case in point is the matter of the People of the State of New York against Silva-Almodovar.
The defendant was arrested in Union Square in New York City for allegedly offering to sell ten painted rocks without a license. In the complaint, the arresting officer swore that he observed the defendant offering the rocks for sale on January 6, 2010 at 1:20 P.M. and on January 31, 2010 at 2:00 P.M. The defendant was charged with acting as a general vendor without having obtained the necessary license from the New York City Department of Consumer Affairs, in accordance with the New York City Administrative Code.
In a decision published in the New York Law Journal on May 4, 2010, Criminal Court Judge Matthew Sciarrino noted that excepting written materials, the New York Vendors Law prohibits the retail sale of non-food goods and other services on public streets without first obtaining a license.
Taking this case and running with it, the presiding judge hypothocated that one may only wonder if there is any constitutional protection (federal or state) with respect to the freedom of either artistic expression or visual art with respect to the sale of painted rocks. The First Amendment to the United States Constitution protects more than merely written or spoken words as mediums of expression. Also protected are pictures, films, paintings, drawings, engravings, and sculptures. The judge also noted that the New York State Constitution is even more protective of free expression than the United States Constitution.
The prosecution relied on a case entitled Al-Amir v. City of New York. There, the defendants claimed First Amendment protection with respect to the sale of perfume oils and incense in connection with proselytizing messages about Islam. The Al-Amir court held that the defendants were not entitled to First Amendment protections as neither vials of perfume oil nor sticks of incense had any inherently communicative element. The prosecution further argued that the rocks sold by Silva-Almodovar did not convey any emotions or ideas, there were just plain old rocks.
Judge Sciarrino quoted a prior case that held that "[v]isual art is wide ranging in its depiction of ideas, concepts, and emotions… a primitive but effective way of communicating ideas." Judge Sciarrino pointed out that in a 2008 case, People v. Chen Lee, a judge found that a defendant arrested for selling coasters bearing photographs (not taken by the defendant) of New York City landmarks and dead celebrities was protected by the First Amendment since the coasters were not suitable for use as coasters or any other practical purpose, and that their purpose was "exclusively expressive."
We suggest that the courts of our great state have more important things to deal with than the sale of painted rocks.
Pier 6 at Brooklyn Bridge Park in NYC is a new project overseen by a private group called The Brooklyn Bridge Park Corporation that two artists must remove themselves and their artwork, The artists asserted their case tested constitutional rights for visual art in public spaces. They produced their state sales tax certificate and tried to "educate" Regina Myer and Jeffery Sandgrund on the fine points of the law.
The legal advice given to the Brooklyn Park Corporation by their own legal counsel. Leave the artists alone.....Federal Law supercedes any local,state law or "rules" set up by a private group seeking revenue.
The photos above illustrate the fine line that the Federal Courts must decide in expressive First Amendment art cases. On the left is a dented and beat up 1988 Oldsmobile (remember those monsters?) transformed into a decorated cactus planter. It was ordered removed from view by the city of San Marco,Texas.On the right is renowned artist John Chamberlain's crushed car body sculpture valued at 20 million dollars.
After losing in the lower courts, the owner of the Oldsmobile appealed to the Supreme Court who declined to hear the case, leaving the appeals court decision standing. This case has relevance to us here in St. Augustine since a county judge had ruled in the artist's favor a few years back, that first amendment protected "art" may be in media other than pigment on paper or canvas. This seems like an obvious conclusion and the artist's here in St. Augustine should never have been arrested, jailed and taken to court over such a basic issue.
The wrecked Oldsmobile is certainly "art", but is it protected by the U.S. Constitution's first amendment? A previous Federal ruling stated that there must be a defining line between the utilitarian and the purely expressive.This decision is a delicate one that sits on a precarious see saw with one side being the "use" and the other side being "expressive value". A flea market toaster is not purely expressive if a rose decal is affixed. And contrary to City Attorney Brown's opinion that t shirts with expressive pictures on it is protected, it is not, unless that message is political or religious. Is Duchamp's R. Mutt signed urinal protected speech? Duchamp's "ready made" art was making a statement (we will not dissect that here) and no....the porcelin urinal lying on it's side atop a pedestal was not meant to be utilized (you can get thrown out of the museum for that!).
You say, "Well ,that Oldsmobile cannot be driven and it has paintings all over it". Good point! This was most likely an issue that was brought up by the appellant artist in the San Marco case. Here is an interesting, albeit erroneous statement by the City's attorneys . They said that past first amendment cases "expressly protects only great works of art that are primarily, if not solely, expressive in nature." In reality, the lawyers in Texas need to learn (and this was the artist's strongest argument) that "non great" or even downright bad art is protected equally. But the decision hinged more on the expressive vs. utilitarian. The creator of the art/planter might have fared better if he left out the cacti. The court decided that the utilitarian nature meant that it was not "solely expressive" as a painting on canvas would be. John Chamberlain's metal car part sculpture has no "use" other than as an artistic display. Since the Supreme Court declined to review this decision, The decision means that the planter /art may be removed as ordered by the city.
Last night our historic little town celebrated the reopening of Aviles Street. It was a party! Citizens mixed and enjoyed the new European style outdoor dining and drinking. The art galleries were packed, the street was impassable. It was esplendido! The photographer for the above pictures admits that the complimentary sangria along with the Modelo beer from Madre's may have contributed to some fuzzy photos.
Congratulations to the City of St. Augustine for a job well done. This is the new hotspot for downtown!
*Note in the upper right hand photo: There's always one poor schlub who insists on walking his bicycle through the crowd.