Thursday, May 28, 2009


Q: Why are artists in court as plaintiffs against the City of St. Augustine?

A: The visual artists have been asserting their right to display and sell artworks on public property as fully protected speech. This right has been affirmed in Federal Court.

Q: So this means that visual artists may set up their kiosks or stands wherever they choose?

A:Please note that we are referring to "public property" specifically parks, sidewalks, playgrounds etc. Nothing in this set of rights permits blocking traffic, preventing orderly flow of pedestrians.

Q: Local governments are allowed to regulate this expression aren't they?

A: Yes. Legitimate and reasonable time, place and manner of the displays can be regulated. The key word is "reasonable". To allow government to arbitrarily limit such activity without specific narrowly tailored interests violates Constitutional intentions.

Q: How does government decide "What is art?"

A: That's the age old question isn't it? Government does NOT decide "What is Art?". In Bery vs NYC and Mastrovincenzo vs Bloomberg the question is "What art is protected speech?" It is a tough question but the courts drew a line recognizing almost anything as art (jewelry making. pottery etc.) but recognizing prints, paintings, sculpture and photography as purely fully protected speech ("a picture is worth a thousand words") In the words of the United States Court of Appeals: "to have equated the visual expression involved in these cases with the crafts of the jeweler, the potter and the silversmith who seek to sell their work. Bery, While these objects may at times have expressive content, paintings, photographs, prints and sculptures, such as those appellants seek to display and sell in public areas of the City, always communicate some idea or concept to those who view it, and as such are entitled to full First Amendment protection." (emphasis is by Art In The Market)

Q: Why do the artists feel that the law should apply only to them and not the jewelry seller or the hot dog vendor?

A: If the above answer did not explain why, another answer is that if we took the jewelry craftsman or the merchandise vendor into court with us we would likely not be successful since the courts have a separate body of laws concerning those wares. Also to have assimilated the street performers into our case would have been counterproductive. There is a marked difference in our philosophy as to "why we do what we do" compared to the merchandise vendor.

Q: What about "wearable art" like t-shirts or decorated hats? For that matter couldn't I simply paint something on a teapot and it is art?

A:To reiterate....The question is not "Is it Art? but is it constitutionally protected art? The courts had to do some difficult 'line drawing' in Mastrovincenzo vs. Bloomberg. This case goes into detail regarding utility as an object vs expressive content:

“almost every object can conceivably be interpreted as having some
expressiveness, and that not everything labeled or hawked as art [should be considered
expressive art"

This case was regarding decorated and hand painted "trucker caps". The Court also address the possibility of a subterfuge by vendors painting something on an object in order to claim First Amendment rights.

Q: The City of St. Augustine 's hired special counsel Michael Kahn who is quoted as saying that "The artists are hiding behind the first amendment". How would you respond to that?

A: Yes ,we are using the language and intention of the founding Father's First Amendment (there is a reason it is first) to defend our rights and yours. There are many far reaching effects if these rights are not protected.

Q: How is it that street art vendors know so much about the law? Commissioner Jones has twice referred to you guys disparagingly as "so called lawyers".

A: We are artists and art vendors who show and sell our works in publicly owned forums. It is as imperative for us to know the rights involved with our vocation as it is for anyone else. Mr. Jones gives credence to the City's lawyers and we have our own able counsel as well as our counterparts in other parts of the country.


  1. Anonymous28 May, 2009

    Nicely and clearly put. These artists are not wild eyeded revolutionaries but actually are performing a patriotic act just as those mothers who are suing the school district for having the kids sing blatantly biased Christian songs.

    It is too bad that I've got to be anonymous here in this extremely conservative comunity.

  2. Anonymous28 May, 2009

    I too think the artists should be able to sell their art in town, but you can't allow artists then forbid other legitimate vendors.

    The City would be crazy to allow enforcement in the manner requested by the artists. If I want to sell sunglasses or t-shirts, my commercial speech is just as protected as the artits.

  3. For the Ump-teenth time.....Commercial Speech is NOT...repeat... NOT... 1st Amendment Protected Speech! Now if after ALL THIS TIME you don't understand the difference, then perhaps you need to study the Constitution of the United States! This blog has done an excellent job of attempting to educate the average "Joe the Plumber" in the 1st Amendment, but obviously, there are SOME who just don't get it and never will! So, to those...please, please, please either educate yourself or shut the hell up! We're sick of the ignorance!

  4. Anonymous28 May, 2009

    This is what needs to be done by the city for everything other than visual art:

    The City of St. Augustine must get out of the individual vendor 10 dollar permit business on Plaza event days. When a non-profit receives a special use permit they become the go to people for the venders. They decide what is a good fit based on their type of event. The allowed vendors, under the special use permit, fall under the liability insurance of the non-profit. They become the overseer of what is allowed to participate with them under that special use permit. The vendors under the special use permit must be setup in close proximity to the event and be considered participating in the event.

    No vendor except the Visual Artists may setup on days not special permitted by a city approved event.

    The city doesn't make the 10 dollars off each vendor but they are out of the decision making process once the special use permit is issued. Basically it’s not your problem. Venues are provided, it’s up to the vendors to sell products that complement different events.

    This would clean up the mess.

    You city boys can steal this simple submission if you like! Save a buck, drop con. :)

  5. Anonymous28 May, 2009

    To be clear, the above was not posted by one of the Visual Artists.

    St. Augustine Lifer

  6. The above sounds like a good plan

  7. Anonymous29 May, 2009

    Really a great plan. With a few phone calls and letters, a few commissioners might well get around a plan that simple. Unfortunately, it is too simplistic.

    In fact it would be struck down in a minute by any state or federal court as being too vague. Writing laws that withstand judicial scrutiny actually is difficult.

    For example. One would need to define "visual art" with such precision and clarity that no two people could reasonably disagree about what could be sold. Trying to define "sculpture" would be taxing starting point.

    One might suggest going with some formula like weighing the functional value against the communication value of the object. Unless everyone would agree on every outcome, courts will strike that down as giving too much discretion to law enforcement.

    But more suggestions would be great. Positive posts from all, constructive ideas! Smells like cooperation.

  8. Anonymous29 May, 2009

    Reading the Constitution will not tell you whether commercial speech is protected by the First Amenedment.

    You have to look at Supreme Court rulings to see how it's been interpreted.

    In 1980, the Supreme Court made a determination that commercial speech WAS protected and gave it intermediate scrutiny. Gov't CAN regulate it, but it is still protected speech.

    "theyshoothorses", if you are actually interested in removing your head from your behind and trying to understand what you are talking about, then read Central Hudson Gas v. Public Service Commission, 447 U.S. 557 (1980). That was the seminal case on the matter and tens or hundreds of cases have re-affirmed this proposition.

  9. Anonymous29 May, 2009

    "Unfortunately, it is too simplistic."

    >That is where the law language comes in directing the use of special use permits. I gave the simplified version for everyone.

    If I'm correct the city was told they needed to proved an outlet for, what they are now calling, Commercial Speech Vendors. (What next?)The special events are those venues. I think you guys are making this too difficult. You are stuck in the decision making business. We have a federal judgment, use it! I didn't see any departure from basic visual art displayed by the artists in the Plaza this week. What's the overworking of brainpower on the judgment?

    Just provide direction to the other venders to the planned venues hosted by organizations. There are lots of them throughout the year. They are traffic generators for their products. Supply and demand will dictate the need of the special permit holders.

    I won't be checking back on this subject, I'm beginning to think there are those that can't care about St. Augustine and our future. There is no wonder of why the artists needed lawyers. They are dealing with hardheads that are perpetuating continued legality on the matter.

    We love you artists and what you contribute to our wonderful city, hang in there!

  10. Thanks Carlos....errr Anonymous... I'll look that one up.

  11. Anonymous01 June, 2009

    Hey theyshootblanks

    I'm the real anonymous. My name's not Carlos. I ain't even Mexican.

  12. Carlos: (aka Anonymous) " Methinks thou doest protest too much".

  13. Anonymous01 June, 2009


    The word is "doth."

    Shakespeare, shinola. Don't worry about. Brushing up on Early Modern English grammar would be easier than figuring out caselaw. So, don't hurt yourself.

    Not Carlos

  14. Not everyone named Carlos is Mexican. Suvo many times calls me "Carlos" and sometimes he calls me ...ugh! "Baby"....Hell! I'm a 14 year old macho Rottweiler and he's callin' me "Baby"!

  15. Your snide comments continue to prove me correct, Carlos...or Not Carlos...whatever. Better shine up your armor, a battle is at hand.

  16. Anonymous02 June, 2009

    Hey Theysureknowsus-

    Neither Carlos nor Not Carlos is Mexican. This is called humor.

    Lighten up, Lancelot.