NYC vs. the First Amendment
by Williams Rossa Cole

In the “new” New York City, the fight against commercialization of public space can sometimes seem as effective as inserting a needle into the belly of a whale. Gargantuan billboards cover the sides of buildings, electronic ads greet you as you wait in the deli line, billboarded trucks and buses roam about, and proposals continually surface for the placement of ads on everything from Metrocards to school buses. In new heights of branding, the lights of the Empire State Building were “Snapple yellow” for a part of August; meanwhile, one suspects that some of the “scaffolding” that has gone up at intersections like Broadway and Houston has been erected for the sole purpose of selling the space to hang provocative billboards. It seems like only a matter of time before ad holograms of the Minority Report ilk begin to color the air.

The Bloomberg administration itself is suffused with a business ethos predicated on the ideas that the corporation is the mantle of efficiency; that taxing the wealthiest New Yorkers is the bane of economic vitality; and that, of course, both privatization and branding are tools of progress. This new vision of New York City, though, seriously endangers constitutional protections regarding free speech and threatens to make the idea of “order maintenance” a tool to fully commercialize the city. And, as usual, the battle is on the streets that are increasingly parceled into private plots. A filmmaker or photographer already experiences the surreal when told by a security guard that permission is needed to shoot this or that store exterior or sign unless he or she moves some feet away to what is left of the public sidewalk. In post-9/11 America conservative pundits and tabloids make a habit of trivializing concerns about freedom of expression amidst the “war on terrorism.”

But New Yorkers must keep in mind that laws protecting free speech as well as public space are usually not easily reversed once they have been changed. And what may seem like an annoyance best gotten rid of many actually carry with it profound damage to constitutional law if eradicated. Of course, we all want to be safe as possible post 9/11, but some of the proposals currently in the City Council, ranging from the possibility of creating more ad space to requiring permits to sell art on the streets, seem more geared to the further commercialization and restriction of public space than public safety.
More Plans for More Ads

A bill calling for “Coordinated Street Furniture Franchise” may at first seem mundane. After all, a move to build, revamp and make more uniform public toilets, bus shelters, newsstands and benches might seem like a way to reduce clutter and ensure that these structures are maintained all over the city. But this effort to essentially privatize street furniture, which has its roots in the Giuliani administration, holds the very real possibility of plastering even more ads all over the streets. It also exemplifies the growing trend of attempting to turn city services into profitable ventures by serving them up as prime space to the sellers of advertising.

Mayor Bloomberg claims that this initiative “will promote continuity along city streetscapes…the franchise will greatly enhance the aesthetic appeal and appearance of our neighborhoods and provide an important public service for all New Yorkers.” Private companies would bid on this lucrative franchise and the winner would design, install and maintain the structures, paying a fee to the city for the exclusive right to sell advertising all over them. Given that the sole source of income for the winner of this franchise will be to sell ads on these new structures, the company who wins this huge contract will necessarily design this new street furniture to allow for maximum ad space.

City officials also argue that this arrangement would bring in needed revenue during a great budget crunch. But one needs to weigh the revenue boost in relation to the aesthetic damage wrought by the increased advertising deluge. Surely, many would say that it’s a win-win situation, making money for the city while also saving money by shedding the responsibility to maintain public structures. But what guarantees uniform maintenance all over the city? Once one company has grips on the aesthetics of the streets, will a small newspaper putting out a news box have to conform to the coordinated style design of all other boxes? Can the private sector preferred policy of self-regulation guarantee that structures will not increase in ad space or decrease in maintenance over the decades to come? Given the very lucrative nature of this franchise, can lobbyists be kept at bay and a trustworthy company be chosen? The proposal is still in the early stages but these are the kinds of questions that should be addressed before a decision to revamp our public space is reached.
No More Free News

Another bill unanimously approved by a Council committee has to do with the plastic and metal news boxes that have increased throughout the city. As Councilwoman Eva Moskowitz (D-Manhattan) recently stated, “I’ve had it with the Wild West on New York City sidewalks…We need a level of civility, while still protecting the First Amendment.'' Surely, it is valid to point out that many of these boxes have become nuisances in that they are covered with graffiti, broken, and empty, are full of vacuous ad “papers” and, many times, are obstacles blocking the determined gait of the average New Yorker. (Full disclosure: the Rail has a box at the NW corner of Broadway and Houston).

This bill would impose regulations on the maintenance, placement and refreshment of news boxes, which is fair enough. It also rightly points out that many of these boxes have popped up filled purely with advertisements, which is not something they were meant to provide, and so would restrict this use. Currently, news boxes are an largely unknown bastion of free speech: without a permit, one can buy a box, put it on the street, put alternative newspapers, or “expressions,” in it, and allow passersby to take them as they please. Of course, this freedom also holds for the major newspapers of the city who own the majority of pay news boxes, but who need not apply for permits. Under the current legislation, all boxes now could be removed by the Department of Transportation if their shape or placement is deemed unacceptable.

While Council members like Moskowitz pay lip service to the First Amendment, these regulations very well may lead to the imposition of a system that weighs disproportionately against papers smaller in terms of distribution and maintenance. Ideally, the Council would take a regulatory position that would restrict advertising supplements and foster the use of these boxes for expressions of diverse viewpoints throughout the city; and the Department of Transportation should regulate with this in mind. It remains to be seen, though, how a city agency will select and enforce these new regulations.
The Constitutional Dangers of Proposition 160

More dangerous to free speech is “Proposition 160,” which contradicts a number of constitutional precedents. This proposal, fully supported by the Bloomberg administration, seeks to impose a permit system on sellers of art in NYC parks and streets. The problem here is that this idea has been shot down numerous times by high courts as a violation of the First Amendment. Since 1982 selling art on the street has enjoyed the same protections as selling written materials and both have been exempted from permit systems. The Supreme Court has ruled repeatedly that government control of the dissemination of ideas infringes on the right to free speech.

Nevertheless, the Giuliani administration frequently challenged the courts on this issue, and the NYPD began harassing and arresting street artists. But over and over again—all the way to the United States Supreme Court--the idea that art was “expression” and protected as much as written material--was upheld. In a seemingly desperate moment Giuliani administration lawyers even argued in an appeal brief that “a series of paintings is not as communicative as speech, literature or live entertainment.” They lost that appeal. Successful lawsuits that concerned these issues, most of which were led by artist/vendor and indefatigable activist Robert Lederman, include Bery et al vs. the City of New York, Lederman et al vs. City of New York, and Lederman et al vs. Giuliani.

Even more familiar is another arrangement that Proposition 160 imposes, forcing artists to seek “approval” from a panel that would “certify” them as “professional, original artists.” Similar to Giuliani’s now defunct “decency panel,” this process raises the possibility of censorship and sanctions the ludicrous notion that government-appointed taste-makers can decide what constitutes legitimate art.
Since the courts have continually upheld the protections for art, one tactic the city could take is to revoke the protection for written materials from a permit system, imposing a serious, if not illegal, restriction on public expression. And as one ominous line from Proposition 160 reads, “Permitting unbridled and unregulated vending of written matter in parks seriously undermines the ability of the commissioner of parks and recreation to provide public recreational activity and to preserve the character of parks for the benefit of the public.” Lederman and others warn that the restrictions first imposed in the parks will eventually cover all public space across the city.

But what is the magnitude of the problem? A less-than sympathetic article in the New York Times recently observed that “there are now more than 100 vendors [of art] around Central Park alone.” But are a hundred unregulated art vendors enough of a threat or inconvenience to warrant a crackdown on crucial First Amendment freedoms? Would a thousand artists give justification to a freedom that courts at every level have protected over and over again?

The intro to #160 also alludes to “keeping the Parks free of commercial activity, ” a noble cause that should apply to vendors selling non-expressive items. In a parallel development, in August a judge found it unconstitutional that the Parks Department had been charging charity groups sponsored by corporate underwriters high fees for putting on advocacy or political events. While Parks Commissioner Henry Stern lamented that this will lessen the revenue brought in by charging high fees to commercial events, a distinction should be made. The ruling was about advocacy/political events, not advertising/promotion events. This decision thus gets in the way of the Parks Department’s plan to increase revenue by allowing huge commercial events in the city’s parks if the promoters pay big fees. Of course, if McDonald’s takes over Sheep Meadow to promote a new product, it should pay the highest price possible. That such an idea is even considered shows how deeply accepted the idea that advertising in public places is OK if it brings in revenue.

The Shiny City of the Mind

Over the last decade, since the mythologized pre-Giuliani “dark days” of the city, the policies of order maintenance has become the de facto rule for the governance of New York. The largely unquestioned “success” of Broken Windows policing, which teaches that if annoyances or little crimes are gone after it will lead to an overall reduction of serious crime, is now guiding policy aimed at securing commercial order on the city’s streets.

The dangers of allowing Proposition 160 to pass could be that only those selling a certain kind of art or written material would be allowed a permit, and a commercial company may end up getting most of the permits for selling books and paintings on the streets and in the parks of New York. Since the policies of order maintenance have gained power in the city there are thousands of stories of booksellers and art vendors, among others, being consistently harassed and arrested by the NYPD in direct contradiction to First Amendment law. And there are already hefty vending regulations throughout the city regarding placement that apply to art vendors as well.

Furthermore, the idea that advertisements are somehow benign annoyances that should be welcomed with a more-the-merrier attitude if they bring in revenue is misguided. Advertisements change the very aesthetic character of public space and should not be relied on as a convenient substitute for taxpayer money. What kind of city are we aspiring towards? A city of glistening order is perhaps an ideal for some but also a chimera if all the “order” is of the commercial nature and order maintenance held as the ultimate ideal. After all, this is New York, a perpetually teeming, diverse and organically chaotic city built on individual, not corporate, expression. And the current battle for free speech, at least for now, is being waged on the city’s public streets.

(Reprinted from the Autumn issue of The Brooklyn Rail)