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I received two letters from Mr. White. I reordered portions of each to better allow readers to understand the issues he presents. I will revisit this after any critique or in time allowing me to further absorb and respond to Mr. White's thoughts. Naturally, I hope others, maybe you, will respond with opinions or insights.
C Drew
Steven White wrote: Background Here in Arizona and in Nevada I work to put on Free Community Fine Art Shows in the public parks open to Fine Artists of all ages and all skill levels to perform, display, and sell their Art without any license requirements, permits, or fees. Artists learn how to properly use the public parks in a way that benefits everyone and the community gets to interact with and participate in the Fine Arts in our communities again. Critique Letter 1 I hold two wins under my belt in Federal Court on these matters. Unlike the Artists in New York City, I worked very closely and directly with my two Attorneys on every aspect of these Litigations I fought for and won in the Federal Courts. We are making huge progress in opening opportunities all over the western States for Fine Artists, as a result of those rulings. I would like to see you do the same thing. But there are some serious problems with your groups understanding of their First Amendment protections. This is not to say that if each of those Art Patches were shown to be conveying and are inseparably intertwined with a particular political, ideological, philosophical, or religious message they may also gain First Amendment protection ...at least under the 9th Circuit Court Gaudiya ruling. I would be happy to debate any aspect of these matters with you or anyone else for that matter. Artists NEED To know and understand these important issues. Letter 2 Fine Artists need to understand the distinct difference between us and commercial vendors and do everything you can to educate the Government and Public about that difference. The problem with your entire movement is that you are NOT selling Fine Art that is entitled to the full protection of the First Amendment....because it is NOT self expression. You are offering the expression of others for sale. I would bet that you would probably not really know what the message of those artists even IS. Because you are not displaying and offering for sale or donations works of Art that YOU personally created you are NOT entitled to the full protection of the First Amendment when selling other's art on public forums. So the Art Patch program is doomed to failure if it goes into Federal Court based upon First Amendment protection to Fine Artists. Having said that however.....there is also the Gaudiya Vaishnava Society and Green Peace v City and County of San Fransisco by the 9th Circuit Court of Appeals. In this ruling the high court held that in the context of a person or person(s) selling merchandise that is inseparably intertwined with a particular political, philosophical, ideological, or religious message being conveyed by that person or person's....then under those circumstances that merchandise can also gain First Amendment protection. The City of Sparks argued that I, the Artist, must meet those standards with my paintings in order to gain First Amendment protection. We won because the Supreme Court has held that the abstract paintings of Jackson Pollock, the Jabberwocky Verse of Lewis Carroll and the music of Arnold Schoenberg where "unquestionably protected" speech. Certainly one can not look at a Jackson Pollock painting and not grant me and all Artists Full protection as well. We have found that when City Governments can have a common sense and Federal Court approved way for the average police officer to readily distinguish between a First Amendment protected Fine Artist versus a Commercial Vendor on public forums it opens opportunities for Fine Artists in the parks and all over the City. When City Officials and the Public come to understand the difference between commercial vendors and Fine Artists it elevates the fine Arts and Fine Artists back to a level of respect in our communities. Letter 2 (continues) So, if you really want to support the Arts in the good old U.S.A.....please continue your efforts but redirect your energies in a way that you can WIN back the rights of Artists in your Community.....by educating EVERYONE about the important distinction between Fine Artist and Commercial Vendors. If you can not accomplish that then your movement is doomed I fear. I would just hate to see you all end up in a Federal Law suit and lose because you are not engaging in Self Expression but selling other peoples Art. The sale of ALL Art by Any One is not entitled to the Full protection by the First Amendment. If you won that case you would be opening the doors for people to be importing art from sweat shops all over the world and selling them all over our Cities and Towns parks. I'm sure that is not what you are fighting for....is it? Full First Amendment protection is offered and defined by the Federal Courts as being for "Original Fine Artists" ; Not for representatives of Fine Artists, selling their Art. Legal Issues THE VALUE OF ART When an Artists donates a work of their Art to a tax deductible charity the I.R.S. will only allow the Artist to deduct from their income taxes the amount of the material cost that goes into the work of Art. If they allowed the Artist to make a claim of a cash value for the work of Art...hell, every Artist would donate a work of art and claim it as being worth $1,000,000 for deduction off of income taxes. The I.R.S. points out that while the Art is in the possession of the original creating Artist it has NO Value beyond the message it may convey because NO commercial value has been established....until the Art leaves the possession of the creating Artist. On the other hand; If a patron buys a work of Art from the Artist for $1,000,000 and donates the art to a tax deductible charity...the patron can deduct the entire amount of the purchase from his or her income taxes. This is because when the patron bought the work of Art from the original artist...the commercial value was established and therefore can be deducted when donated for charity. LEGAL ARGUMENT FOR WHITE'S RIGHTS What has happened all over America for the past 25 years is that City Governments have gotten in the business of handing out special event festival permits to non-profit groups to use Art and Artists for their fund raising events. As this has happened these special interest groups have opened these countless festivals to anything and everything being sold. With a sprinkling of real Artist in the mix. This is how they were able to throw Artists under their commercial codes...tapping into business license and sales tax license revenue from Artists by labeling them as one and the same as Commercial Vendors. Now, the public, City Officials, and even Artists think that they are one and the same as Commercial Vendors. That is what this fight is all about. Cities are perfectly within their right and power to regulate Commercial Vendors of functional / utilitarian and represented merchandise. On the other hand, Fine Artists are protected in Full by the First Amendment and their right to sell their Art is protected by the First Amendment. Artists can only be made subject to Minimal and Reasonable Time, Place, and Manner Restrictions that are content neutral, narrowly tailored to address a compelling governmental need, and must NOT be a "Prior Restraint" on protected Speech, (which all licenses are as applied to artists), and must be equally applied to ALL Citizens speaking on traditional public forums. If you are selling or offering for sale the works of Art by another person....that is commercial activity and can be subject to all the commercial regulatory restrictions the City applies to commercial activity. If you are selling merchandise that has a dual purpose, both aesthetic and utilitarian or functional and whether sold by yourself or by a representative is also Commercial Activity and can be regulated under the City Commercial Codes. If you are a Fine Artist and are performing, displaying, and receiving compensation for your Artistic Self Expression, that you have personally created and having NO functional or utilitarian purpose then you are entitled to the FULL Protection of the First Amendment to the United States Constitution. An Artist, in my legal opinion, can NOT be licensed for selling their Art on a spontaneous basis on traditional public forums. However, a City can and usually do license PRE-Planned First Amendment protected activities such as parades and marches in order to insure the public safety. Many times A.C.L.U. Attorneys will think that because a City can license a pre-planned Free Speech Activity that means that the City can require a license of an Artist to engage in First Amendment protected Activity. NOT! The U.S. Supreme Court has NEVER held that a Government entity can require a License of ANY Kind as a precondition of allow a Citizen to engage in Spontaneous Freedom of Speech activity on public forums. Any licensing scheme is unconstitutional as a prior restraint when our First Amendment Right becomes contingent upon waiting for Government Offices to open in order to get a license! When Artists think that they are one and the same as a commercial Vendor and both have a First Amendment Right to sell their merchandise on traditional public forums.....those Artists are looking to lose an important litigation in the Federal Courts....if you even could get attorneys interested in representing them. If you want to stand up for Artists Rights you first need to know the legal definition of what it is you are fighting for. Artists and Commercial Vendors and NOT the same and you must come to understand the important difference and do everything you can to educate everyone about that difference.....or you are actually hurting every Artist in America with your efforts. Just as the miss-information coming out of N.Y. has already hurt your cause. Artists must fight for Artist's Rights...not the right of every person under the sun to go out and sell Art they did not create. Are you fighting for Artists First Amendment rights? Because this battle you can WIN, just as I have won. Or are you fighting for the First Amendment rights of other people to sell Artist's Art? Because representatives selling others Art are NOT entitled to the Full protection of the First Amendment and you will lose that fight in Federal Court! A very important matter of distinction I hope you understand. FIRST AMENDMENT SLIDING SCALE ARGUMENT You see the First Amendments protection rides on a sliding scale. While it is true that even "commercial" merchandise has some First Amendment protection, it is also true that "commercial" merchandise does NOT rise to the level of FULL PROTECTION by the First Amendment. Because "commercial" merchandise does NOT rise to the full level of protection by the First Amendment, City and other governments can and do regulate "commercial" sales activity and are entitled to do so! However, as we know from the White v Sparks ruling by the Ninth Circuit, Whitepdf.pdf (application/pdf Object) , an "Original Artist" working in the mediums of painting, drawing, sculpture, photography, prints, engravings, stained glass "as art for art's sake", music, dance, theatrical performance, and dance are all forms of "Self" expression that do in fact Rise to the FULL Level of Protection by the First Amendment. It is because Artistic "Self" Expression rises to the FULL Level of protection by the First Amendment that it is then also "Well settled that a speakers rights are not lost merely because compensation is received; a speaker is no less a speaker because he or she is paid to speak." quoting the U.S. Supreme Court. Once the determination has been made that the expression being offered to the public, on public fora, is entitled to the FULL Protection of the First Amendment then the right to sell it for profit is also protected. There in lies the problem you are facing and all Fine Artists are facing all over the Country. Cities can and do regulate and even eliminate "Commercial Vendors" from public property all the time and they have the power to do so. The problem is that these same City Officials think of Artists as one and the same as "Commercial Vendors". They think that as soon as the Artists offers their Art for sale...they have crossed some line and become one and the same as commercial vendors and they can run Artists off just like they run Commercial Vendors Off. The trouble of course IS; Artists are NOT commercial even when they sell their art for profit, nor are our rights diminished in any way because we sell our art for profit. See White v Sparks again. So HOW DO YOU DISTINGUISH A COMMERCIAL VENDORS FROM A PROTECTED ARTIST? I hope you can see the problem here. Everyone has their own idea of what an "Artist" is! How do you define what an "Artist" is? What is all important IS; How do the Federal Courts distinguish between a "commercial vendor" who the Governments can and do regulate the hell out of ...versus....how the the Federal Courts determine who is a First Amendment Protected Fine Artist? The Federal Courts are the one's making the rules after all...not you, not me, and certainly not City Officials. So, how do we make a determination of FULL Protection being offered to an Artist when using traditional public forums to sell their Art? This is the part you will not like but you must understand if you ever have a chance of winning this noble fight you are in. I have had this discussion with Robert Lederman over the years as well. In New York Robert has allied the Artists with all the Commercial Vendors to fight the City on First Amendment issues. It is my opinion that such as strategy is harmful to Artists and harmful to outstanding freedom fighters like yourself. Artists must define themselves as separate from and distinguished from Commercial Vendors or Artists will NEVER regain their Constitutional Freedoms. The biggest problem is that even the public believes that once an Artist sells their Art, they are commercial and subject to commercial regulations....while nothing could be further from the truth. You see Fine Art rises to the FULL Level of protection under the First Amendment because it is purely expressive of the "Original" creating Artists perspective, ideas, concepts, emotions. A work of fine Art being displayed and or offered for sale by the "Original" Creating Artist has NO value beyond the message it conveys. When I create a painting I have taken paint, canvas, and stretchers and destroyed the commercial value of those things in creating the so called work of Art. All that I am left with is dried paint on canvas...right? It has no value what so ever...hell, I may never sell it....who knows. As long as it is in the hands of the Original Creating Artists it is value less. It is simply "Self Expression" which is protected at the very core of the First Amendment. Now if I did the same painting on a T-Shirt....the T-Shirt has a functional and or utilitarian purpose as well as possibly being expressive. It is therefore NOT purely expressive in nature and can be regulated by the City / Government as commercial merchandise. See Mastravencinzo v City of New York, 2nd Cir. Ct. Appls., (2006) In Arizona they have the Arizona League of Cities and Towns Model City Tax Code, Exemption Option (X). link; Welcome to Model City Tax Code This language distinguishes between the First Amendment protected Artists and the Commercial Vendors, exemption Fine Artists from business licenses and sales tax licenses on Constitutional grounds. This language is in compliance with Federal Court rulings on these matters. This was written back in 1985 and has been in their State Model City Tax Code for all those years. There are two basic rules for Fine Art to reach to the Full Protection of the First Amendment. Rule #1. It must be Fine Art being displayed by the "Original Creating Artist". Note; When reading the ruling by the 9th Circuit in White v Sparks it is important to understand that the Court is using the term "original Art" in reference to the art being "Original" to the Artist who created it.....not a one of a kind original work of art. As demonstrated by the court listing "prints" as protected speech. Rule #2. It must fall under the categories listed by the Federal Courts of Appeals as being Fine Art entitled to the Full Protection of the First Amendment. Ruly #3. The work of Art must be purely expressive and having NO functional or utilitarian purpose. These are the guidelines put forth by the Federal Courts. Fine Artists need to realize that they ARE NOT commercial vendors and have rights that Commercial Vendors don't have, when it comes to offering their Art for sale on public forums. More Legal Argument Robert Lederman has based a lot of his understanding on these matters in the ruling by the 2nd Cir. Court in Bery v City of New York, 1996. The problem with that ruling is that the high court Never used the words Artistic Self Expression....leaving everyone who read it to think that they were ruling that All Art being sold by anyone was protected. So that is what Robert has been preaching for many years. Yet even he understands that the Bery ruling Plaintiffs in that case were ALL ORIGINAL FINE ARTISTS. Shooting down that miss guided legal opinion...in my view. One of the biggest things I wanted from the 9th Circuit Court in my ruling against Sparks was for the high court to clarify the Bery ruling by stating that Artistic "Self" expression being displayed by the "Original" creating Artist is entitled to the Full protection of the First Amendment. In many ways we in the western States have already won the rulings from the 9th Circuit Court of Appeals that we have needed to re-establish the Fine Art in our communities and open opportunities for Fine Artists. In another ruling, Perry v L.A.P.D. the 9th over turned a lower District Court ruling against Artist Perry because the City offered non-profit and religious groups an exemption from licenses when soliciting for money or selling their protected expression on public forums and yet did not offer Artists Perry the same exemptions....thus violating his 14th Amendment right to equal protection under law. Almost every City of State I have ever been to, also exempts nonprofits and religious groups from licenses...based upon the Gaudiya ruling. We go to these Cities and demand equal rights under the law with equal exemptions as per our 14th Amendment Rights. As the 9th again points out in White v Sparks. Whether sold for profit of given away for free makes no difference in determining Full Protection under the First Amendment! |
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Uptown
Multi-Cultural Art Center
(UM-CAC). E-mail umcac@art-teez.org
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