New York City Art Vendor Rules

Largely in response to objections for local artists, New York City officials have scaled back plans to limit the number of art vendors in public parks.  From a N.Y. Times report:

Officials of the Department of Parks and Recreation had originally sought to cut the number of vendors to 81 to improve pedestrian flow. But after the proposal drew the anger of professional artists, many of whom depend on selling art as a livelihood, the city agreed to cut the number less drastically, to as many as 140.
The city’s new plan will allow 19 additional vendors in Central Park, and it will open up locations near the Metropolitan Museum of Art, an often-crowded passageway for tourists.

In Union Square, one of the most congested islands of greenery in the city, the equivalent of an artists’ market will appear three times a week. An additional 40 artists will be allowed to set up shop on Tuesday, Thursday and Sunday, in the space used by the Greenmarket, the park’s farmers’ market.  The spaces will be awarded first come first served. There is no formal permitting; instead, artists simply line up each day to try to get a space.

The amended rules are certainly an improvement.  But they will still limit expression in the parks, and will likely not please many vendors. 

As far as the First Amendment is concerned, the amended proposal appears to have been drafted with a constitutional challenge in mind.  The rules do not distinguish among various types of art, operate on a first-come basis, and are designed to be tailored to address the purproted pedestrian traffic and public order concerns expressed by the city.  The city also maintains that artists now have ample alternative channels for displaying and selling their works.  This sort of content-neutral restriction on public expression generally withstands constitutional scrutiny under the First Amendment.  Even in traditional public forums like parks, officials have fairly broad discretion to impose content-neutral time, place and manner regulations on speech.  For example, New York City successfully defended limits on the number of protesters allowed in portions of Central Park on the ground that large numbers of people could damage the park's lawn.

Hands Across the Sand

Here is a report regarding another form of public contention in response to the BP oil spill in the Gulf.  Note the combination of social networking technologies and physical displays:

In all, mainly through connections made through Facebook, 820 events were scheduled in all 50 states and in 34 countries. Thousands of people worldwide stood hand in hand — with some, here in South Beach at least, breaking the chain only for surfers or topless women — to protest drilling and to demand cleaner energy sources.

The G20 in Toronto

As reported in the N.Y. Times, more than 20,000 officers were deployed during the recent G20 summit in Toronto.  Ater the police apparently allowed small groups of violent protesters to engage in acts of vandalism, they stepped up their efforts and arrested more than 600 people.  Toronto has followed the typical pattern of "militarizing" the places surrounding the summit meetings.  Militarization includes surveillance activities, protest zoning, suspension of civil liberties near contested venues, use of physical force and chemical irritants, and deployment of large police forces.  Under such conditions, protests become difficult if not impossible to conduct.  Peaceful protesters and members of the press are often swept into the police dragnet.  (I discuss the militarization of public places during critical democratic moments in Chapter 7 of Speech Out of Doors.)

Civil liberties groups have objected to the policing of the G20 event.  From the Times report:

“Civil liberties are in rough shape today,” said Nathalie Des Rosiers, the general counsel of the Canadian Civil Liberties Association, which had two of its observers arrested and detained. “We will have to have some accountability for what is going on.”


In a statement, the Canadian branch of Amnesty International called on governments to review the security measures made for the meeting, including a temporary suspension of various civil liberties in the portion of this city’s downtown near the meeting site.

One difference between Toronto and other venues is that public officials appear to have been more honest and transparent regarding the costs of all of the security measures.  The costs are estimated to total in excess of $1 billion. 

Day Laborers and Free Speech

Efforts to regulate the activities of day laborers, who solicit work in public places, have raised some interesting equal protection and free speech issues.  Efforts to displace day laborers lie at the intersection of free speech and immigration concerns. 

The Ninth Circuit has just upheld a Redondo Beach, California ordinance that limits such solicitation.  In a 60-page decision, the court held that Redondo Beach Municipal Code § 3-7.1601, which prohibits the act of standing on a street or highway and soliciting employment, business, or contributions from the occupants of an automobile, is a valid time, place and manner regulation.

The court concluded that solicitation, which in this case consisted of leaving a public sidewalk to approach a car stopped on a public street, was expressive.  However, it held that the ordinance was content-neutral and deferred to the city's stated interests in ensuring the flow of traffic and public safety.   The court also concluded that the ordinance was narrowly tailored and left open ample and adequate alternative channels of communication because it "permits persons to solicit 'business,employment, or contributions' from people on sidewalks or in similar public forums within Redondo Beach, so long as the act does not take place when the target of the solicitation is actually driving in the street."

Judge Warlaw dissented on the ground that the Redondo Beach ordinance was an overbroad restriction on expressive activity in a traditional public forum.  The opinion offers a strong defense of the act of solicitation and the traditional public forum.  Judge Wardlaw concluded: 

The majority tramples upon the right of free speech in the most traditional of public fora. It erroneously relies upon precedent involving an as-applied challenge to the constitutionality of an aspirationally similar statute and contorts the actual words of the Redondo Beach Ordinance beyond recognition. The district court got it right: The Redondo Beach Ordinance is an unconstitutional regulation of speech; it is not narrowly tailored to meet Redondo Beach’s asserted governmental interests; and it fails to leave open alternative avenues for the
day laborers’ expression.

Brooklyn Public Library Read-In

This interesting N.Y. Times story reports that some librarians in Brooklyn are not taking proposed city budget cuts lying down.  They held a 24-hour "read-in" to protest the cuts. 

As this Supreme Court case from 1966 demonstrates, public libraries were integral "contested" places during the civil rights era.  Then it was black protesters challenging segregationist policies at public facilities.  Today it is the librarians themselves who are protesting, and fighting to keep their facilities open to the public at large.

2004 NYC Surveillance Documents Can Be Kept Secret

According to this report in the N.Y. Times, the Second Circuit has held that New York City may keep secret about 1,800 pages of "Field Reports" relating to surveillance conducted by officers in NYC and across the globe prior to the 2004 Republican National Convention in NYC.  A large group of plaintiffs who were detained and held overnight at the convention after they allegedly held peaceful protests are pursuing a civil rights action against the city.  The plaintiffs allege that they were arrested and detained without proper cause.  The city contends that the threat level at the convention was high, and that its mass arrest policy was justified. 

Covert surveillance has become part of the militarized environment preceding critical democratic moments such as national party conventions.  Some "Action Reports" filed by police during surveillance had previsously been released during litigation.  Those reports indicated that officers were conducting surveillance on peaceful protest groups, including those who intended to engage in peaceful vigils, marches, and poetry readings during the conventions.  About 600 pages of "End User Reports" have also been disclosed, which the city says justify its conclusion that the convention was a possible terrorist target.  The latest discovery battle involves the Field Reports, which apparently detail covert surveillance activities by NYPD leading up to an during the convention. 

In its opinion, the Second Circuit held that the Field Reports are protected under the law enforcement privilege.  It concluded that plaintiffs had not demonstrated a compelling need for the documents, largely in light of their possession of the End User Reports, and that disclosure could harm law enforcement operations at future public events.  The case will proceed to trial.     

Sidewalk Leafletting

According to this report, a federal court has ruled that a Dearborn group has no First Amendment right to roam about the sidewalks near an Arab-American festival to distribute literature about Christianity.  Instead, the court held that would-be pamphleteer could be confined to a booth space within the festival grounds.  The plaintiff sued, in part, because he claimed that festival-goers would not be likely to stop at the assigned booth.  I gave a radio interview some time ago regarding this case.  Along with a few other law professors, I also expressed some early thoughts on the case in this FOXNews.com report. 

Bans on leafetting in traditional public forums (indeed in any type of forum) are generally deemed unconstitutional.  The fact that such a ban will help maintain public order, as the Dearborn authorities appear to allege, does not suffice to make what is essentially a medium ban constitutional.  While it is true that the First Amendment does not guarantee the speaker the best location or means of expression, it is also the case that a speaker cannot be denied a right to speak in a traditional public forum on the ground that he may speak in some other place -- in this case from inside a booth.  Like other "free speech zones," the booth appears to preserve the speaker's right to communicate in public.  But the speaker's audience in this case is not going to be a willing one; hence the need to use the public sidewalks for what will likely be unwanted and in some cases perhaps unpleasant encounters.  (I am assuming, of course, that the sidewalks remained "public" in this case -- i.e., that they were not part of any private permitted event.)   

BP Stations as Contested Places

As reported here, protesters have begun to appear at retail BP gas stations in response to the Gulf oil spill.  As the article suggests, the protests are not likely to have a large impact on the consumption of gasoline at BP outlets.  Similar efforts following the Exxon Valdez oil spill were largely ineffective.  However, the public gatherings and protests will serve as a tangible reminder to the public of the ongoing catastrophe.