From: ARTISTpres@aol.com
Date: Thu, 21 Mar 1996 08:37:41 -0500
Subject: Parks Dept. to sell free speech rights

Parks Department To Sell
Freedom of Speech to the
Highest Bidder

The Parks Department has decided there's a lot of
money to be made by selling concessions in N.Y.C.
parks. Unfortunately, it's not just more hot dog carts
and ice cream stands that they're interested in selling
concessions for.

According to an article and letters recently printed in
the N.Y. Times the right to display or sell original art
in N.Y.C. parks will now become an exclusive right
offered solely to the highest bidder. Anyone
unsuccessful at bidding for one of the 8 proposed
concessions to be designated for artists in front of the
Metropolitan Museum of Art or at a limited number of
other locations, who attempts to display or sell
original fine art of their own creation, will be subject
to immediate arrest, confiscation of their art, a $1,000
fine and imprisonment. Previously, the Parks
Department's policy was, "We respect artists' First
Amendment rights." The Department's Legal Counsel
now claims, "Selling art is not protected by the First
Amendment".

While concession rights to sell hot dogs and pretzels
have sold for as high as $275,000 for one spot, hot
dog selling is not a guaranteed First Amendment right.
Freedom of speech is. 

"...artistic expression constitutes speech for First
Amendment purposes...".  
Serra v. United States Gen. Servs. Admin., 847 F.2d
1045, 1048 (2d Cir.1988)
                                    
Selling the tangible form of a medium of speech does
not remove its First Amendment protection. When an
artist paints, sculpts, draws or creates a photograph
and then displays or offers it for sale, they are
distributing their visual ideas to the public. This is
exactly what an author or public speaker does when
distributing their written or verbal ideas by selling a
book or accepting a donation for giving a speech. 

 "Speech is protected even though it is a form that is
sold for profit, and even though it may involve a
solicitation to purchase or otherwise pay or contribute
money."
Virginia State Bd. of Pharmacy v. Virginia Citizens
Consumer Council, 425 U.S. 748, 761 (1976)

           Public parks are among the locations where freedom
                     of speech is most protected...

"The privilege of a citizen of the United States to use
the streets and parks for communication...must not, in
the guise of regulation, be abridged or denied."
Hague v. C.I.O., 307 U.S. 496 (1939)

Selling the right of speech to the highest bidder
violates the First Amendment's prohibition against
"abridging the freedom of speech", and the Fourteenth
Amendment's guarantee of "equal protection under the
law" . The Fourteenth Amendment also protects the
right to use public lands, such as the City's parks.

The artists who have traditionally displayed and sold
their art in parks and on the streets of New York City
have great respect and affection for our system of
parks. We have done nothing to harm the park
environment or to keep others from enjoying this
wonderful resource. We also love and respect our
nation's tradition of unrestricted free speech, and will
take whatever action is necessary to protect this
irreplaceable right. We strongly oppose any plan by
the Parks Department which would establish a
discriminatory condition for free expression, based on
the ability to pay or offer the highest bid. We urge
those who care  about freedom of speech and the
freedom to use public parks to join with us in
protesting this unfair and completely unecessary
policy. 
              For more information contact:Robert Lederman,
                       president of A.R.T.I.S.T. 
           (Artists' Response To Illegal State Tactics) (718)
                   369-2111 e-mail ARTISTpres@aol.com
                          A.R.T.I.S.T. Web Page:
              http://homepage.interaccess.com/~mar/nyc.html
 Thomas Rozinski, Legal Counsel Department of Parks
(212) 360-1319  Metropolitan Museum of, Art press
office (212) 570-3900             
 "This Time NY Parks Mean Business" 2/16/96 NY
Times Metro section; NY Times Letters: "Keep Free
Expression in Parks Free" 2/23/96; "Parks Restrict
Sale of Art, Not It's Creation" 2/28/96; "New Allies
For Street Artists", Art in America March 1996 pg.
128