Federal Court Upholds City Rule Regulating Art Vendors in Parks

By Victoria Bekiempis on September 26, 2013 11:56am 

 Street artists selling wares such as this painting on the High Line are legally regulated by the Parks Department's rule governing their wherabouts, a federal court ruled on Wednesday, Sept. 25, 2013.
Street artists selling wares such as this painting on the High Line are legally regulated by the Parks Department's rule governing their wherabouts, a federal court ruled on Wednesday, Sept. 25, 2013.
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DNAinfo/Mathew Katz

UPPER EAST SIDE — A federal appeals court decided Wednesday to uphold a controversial city rule limiting the number of artist-vendors in the city's biggest parks.

A U.S. Second Circuit Court of Appeals panel disagreed with artists' claims that the city's efforts to regulate their whereabouts — by only allowing them to sell in designated spaces in Central Park, Union Square Park, Battery Park and the High Line —  violated the First Amendment.

The three-judge panel also ruled that the artists challenging the regulation — led by Robert Lederman, who has long battled the city over vendors rules in public parks — does not have the right to depose Mayor Michael Bloomberg and former Deputy Mayor Edward Skyler. Lederman had sought these officials' testimonies to make the case that the city had an anti-artist attitude.

Though the court agreed art solid in public "is entitled to full First Amendment protection," it maintained "the government may impose reasonable content-neutral restrictions on the time, place, or manner of protected speech."

The court opinion said the city wasn't applying rules to artists "because of [agreement or] disagreement with the message it conveys."

Rather, the court felt the city's regulation of artist-vendors' whereabouts is intended for "alleviating congestion and improving circulation, promoting the aesthetics of the parks, and ensuring that the parks are available to the public for a wide range of activities." 

The court ultimately felt that these restrictions were constitutional, agreeing they can remain.

The panel of judges, in deciding not to allow Lederman to depose Bloomberg and Skyler, also wanted to set a broader precedent about deposing government officials, saying that they are protected from depositions save for "exceptional circumstances."

"We have not previously addressed this issue in a precedential decision," wrote Circuit Judge Denny Chin, who authored the panel's opinion.

"We now hold that, to depose a high-ranking government official, a party must demonstrate exceptional circumstances justifying the deposition — for example, that the official has unique first-hand knowledge related to the litigated claims or that the necessary information cannot be obtained through other, less burdensome or intrusive means."

The city, which for several years has done legal battle with Lederman and the artists he represents, welcomed the decision.

"We're very pleased that two courts have now found these regulations to be completely lawful and appropriate," Julie Steiner, senior counsel in the Law Department's Appeals Division, said in an email.

"As we argued and the Second Circuit agreed, the City's interests in alleviating congestion, promoting parks' aesthetics, and keeping park space available to the public are indisputably significant reasons for the regulations."

Lederman disagreed with the court's decision — and vowed to keep fighting.

Asked whether he planned to appeal, he wrote in an email, "absolutely" and that he's "working on an appeal to the U.S. Supreme Court right now."

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