Robert Lederman has been arrested 41 times for selling his watercolors. The first time he was collared, in the winter of 1984, he had just broken up with his wife and was sleeping in a cardboard box in New York City's East Village. "I was living from selling my work," Lederman tells Newsweek.
One day, he was sitting on his leather portfolio, in which hundreds of paintings and prints were stored, when an officer approached him and asked for ID. The officer arrested Lederman on unlicensed general vending charges and confiscated his portfolio, he says. The charges were dismissed, and he managed to get his work back, but the incident started a protracted game of cat and mouse with the cops. "If I saw the police coming, I'd quickly pack up my stuff and run for it," says Lederman, who at 5 feet, 11 inches and 140 pounds, sporting a salt-and-pepper beard, highly tarnished wire-frame glasses and a head of unruly brown curls, looks more like a mellow and slightly malnourished peacenik than a relentless activist.
In 1993, he formed Artists' Response To Illegal State Tactics (A.R.T.I.S.T.) and started battling the city in court over every arrest, summons and attempted regulation of the city's street creatives. The courts repeatedly sided with him, and artists across the country used his victories as precedent when their cities tried to restrain them.
But Lederman's luck changed in September 2013, when a federal court upheld a 2010 New York City rule limiting the number of artist-vendors in the city's most popular public spaces - Central Park, Union Square Park, Battery Park, and the High Line.
Lederman says these regulations make it very difficult for them to sell their art. He also claims artists get treated differently from buskers, who have far greater leeway in terms of where they can perform. When contesting these issues in court, Lederman and his lawyer have argued that they violate First Amendment protections of free expression as well as Fourteenth Amendment guarantees of equal protection under the law.
Though the U.S. Second Circuit Court of Appeals agreed that art sold in public did have "full First Amendment protection," it said the city had the right to "impose reasonable content-neutral restrictions on the time, place, or manner of protected speech."
Lederman also contends that the Second Circuit overlooked anti-artist animosity among city officials, from former mayor Rudy Giuliani to outgoing mayor Michael Bloomberg to the Department of Parks and Recreation - and that he has proof of this bias. The rub, though, is that the Second Circuit shot down Lederman's petition to depose Bloomberg and others, ruling that governmental officials should be protected from depositions unless it's an "exceptional" circumstance.
Street artists nationwide fear other cities will follow New York's lead - that municipalities will feel emboldened by the Second Circuit's opinion. As such, artists across the country believe much is at stake here, in ongoing battles to create and sell their wares freely. A recent ruling in Venice Beach, Calif., for example, upheld the city's right to issue permits via a lottery system. In San Francisco, artist advocates are fighting a permitting system in which applicants must be screened to prove they produce their own artwork in order to contend for a small number of approved vending spots. In St. Augustine, Fla., artists say that recent city ordinances bar them from the overwhelming majority of the historic district, such that they could face arrest for painting or drawing - regardless of whether they're selling their work. A national street artist and busker advocacy organization says it gets around one report monthly from a street creative who was hassled or arrested by police; the group worries that a Lederman loss would mean, at least in the short term, increased repression.
"This is not good for creativity," says Michael Addario, an artist-activist in San Francisco, of the ruling. "Right now, we're on a downward spiral."
Lederman and his lawyer will attempt to get the U.S. Supreme Court to hear their case - and, with financial support from artists across the U.S., are working to submit their appeal by the December 24 petition deadline. They will likely have to prove that there's conflict between the Second Circuit's decision and other circuit courts that heard similar cases or that the panel didn't adequately consider all the evidence, including alleged anti-artist-hence anti-expression-animus, legal experts tell Newsweek.
And there is a fair amount of evidence supporting claims of animosity or at least disdain for artist vendors, starting when Giuliani became mayor in 1994.
The NYPD increasingly handcuffed artist-vendors at Giuliani's behest. His administration also called for artists to have vending licenses - and was so incensed at the Second Circuit Federal Appeals court striking down the rule that he appealed in 1997 to the U.S. Supreme Court, which refused to hear the case. Then, his administration instituted a permitting system - in which artist vendors had to have a permit to set up in parks - which was also nixed in 2001.
Lederman was arrested continuously - prompting Frank Serpico, the renowned NYPD whistle-blower, to describe it as retaliatory "harassment" in a 2000 Village Voice editorial. In Serpico's opinion, Giuliani and Bloomberg's push to control where artists set up stem from their efforts to please businesses and is in keeping with their efforts to privatize public spaces.
Bloomberg's people seem to think street artists pose an economic threat. Former Parks commissioner Adrian Benepe repeatedly complained that artist-vendors didn't pay fees or taxes. In addition to targeting the New York City daily newspapers' editorial boards to propose meetings on the rules, city officials planned on asking notables from Bette Midler to Bill Moyers to Caroline Kennedy to pen op-eds on the topic, according to emails obtained by Newsweek. A Department spokeswoman also pitched "an unconventional idea" to Benepe in an email: They wanted to find a Daily News or New York Post reporter "to sit with an expressive matter vendor for a day to observe firsthand one who sells mass-produced stuff to tourists" and see "how much do they make? How do they keep tabs on the taxes?... How many of them do we need?"
The outgoing mayor's office disputes that his administration worked against these artists. "No city in the country has done more to support the arts - and champion public art projects - than New York under Mayor Bloomberg," mayoral spokesman Frank Barry writes in an e-mail to Newsweek.
New York City's Law Department maintains that its policies are for public safety, and remains confident that it will win in a higher court. "Both the District Court and the Second Circuit Court of Appeals have agreed that the city's regulations reflect a careful balance between the rights of First Amendment vendors and the city's valid interest in ensuring that parks can be enjoyed by the public," a spokesperson told Newsweek in an e-mail. "The rulings speak for themselves."
Representatives for incoming mayor Bill DeBlasio have not replied to requests for comment on his position on the issue.
Ken Paulson, dean of the College of Mass Communication at Middle Tennessee State University and director of the First Amendment Center, says municipalities do have the right to address society's needs - such as for clear sidewalks - and can simultaneously preserve speech with "some narrowly tailored limits."
"We all have a right to march down the street and protest," he explains, "We don't necessarily have a right to do it on Broadway at high noon because of the traffic ramifications."
He thinks the Second Circuit was wrong in agreeing with the city that the regulations are narrowly tailored. "If you are trying to communicate ideas to people, whether on canvas or on a soapbox, you need to go to the most heavily used areas," he says. "By limiting the sale and exhibition of art in these locations, they're largely negating the impact of speech.
"It's like saying to somebody 'Yes, you can express your view on the Obama administration, but only away from other people.' "