Tuesday, April 14, 2009

Court Asked to Vindicate Rights of Visual Artists

Visual art is protected by the First Amendment -- that includes art sales on public property. Our City of St. Augustine has repeatedly violated visual artists' rights by arresting them.

As a result of its anti-artist wars (announced in a series of repressive laws directed against visual artists), St. Augustine's city government may soon be ordered by a federal court to stop arresting and harassing visual artists for selling their original art. The court has been asked to order the City of St. Augustine to stop enforcing an "overbroad" city ordinance (Ordinance 22-6) against the visual artists.

Arrests of visual artists have plagued life in St. Augustine for at least eleven years, since controversial William B. Harriss was named City Manager.

Visual artists were first hounded, harassed and driven off four pedestrian blocks of St. George Street, the oldest street in America, with then-patrolman Barry Fox of the St. Augustine Police (SAPD) once arresting a 78-year old artist and frogmarching her down St. George Street.. (For a good time, go to Loose Screws and buy or rent J.D. Pleasant's documentary, "St. George Street Saga – The Story of the Artists and Performers Banned from St. George Street In the ‘Nation's Oldest City – what they did and what happened to them.")

City officials promised the artists in 2000 that they could continue to sell art in America's oldest public market (Slave Market Square or Plaza de la ConstituciĆ³n). Then the City Manager and City Commissioners broke their word. They banned the use of the Plaza (and all city's parks, streets and sidewalks in its two large Historic Preservation zones, effectively preventing artists from showing and selling their work outdoors since 2007.

Four visual artists sued the City, contending that their First Amendment rights to sell art have been violated.. The artists are Bruce Bates, Richard Childs, Elena Hecht and Kate Merrick. The four were represented in an April 13, 2009 federal court hearing by Jacksonville attorneys D. Gray Thomas, William Sheppard, Bryan Everett DeMaggio and St. Augustine attorney Thomas Elijah Cushman.

Artist attorney Gray Thomas cited federal cases, including one from St. Augustine (won by Warren Celli over distributing the "St. Aug. Dog" newspaper). Thomas argued that the City's ordinance "overswept" and was "overbroad," based upon artist and bookselling precedents from federal appeals courts. As a result, Thomas asked District Judge Marcia Morales Howard to grant a preliminary injunction, which will stop the City from arresting any more artists until after the trial.

In the lengthy oral argument, which spanned two hours and six minutes, attorney Gray Thomas and Judge Howard noted that the scope of the ban affects most of the historic tourism area -- the only Historic Preservation (HP) district not covered is the residential area (HP-1). The City's total ban in Historic Preservation Districts HP-2 & HP-3 of street and park commercial activity exempts newspaper sales, Thomas said, arguing that the City's ordinance 22-6 should have exempted visual artists on First Amendment grounds. In the language of First Amendment law, it was not "narrowly tailored."

The artists' lawyers used an ELMO projector to show their exhibits on a 30 foot screen to the entire courtroom, peopled with some 30 visual artists and their supporters.

In order to win a preliminary injunction the artists first had to convince Judge Howard that they had a substantial likelihood of prevailing on the merits and are continuing to suffer irreparable harm. Thomas quoted the Supreme Court as stating that even if a person's First Amendment rights are violated for a brief moment, she suffers irreparable harm.

Opposing the preliminary injunction were the city's high-priced Melbourne defense attorney Michael Kahn (who said it was a privilege to argue First Amendment issues in federal court). The City hired Kahn to write anti-artist ordinances he is now defending, but this was not called to the attention of Judge Howard. Kahn is a Republican who advertises on a website for Republican lawyers. Kahn was accompanied by St. Augustine's City Attorney Ronald Wayne Brown and City Planning and by Zoning Director Mark Alan Knight (who sat in the audience).

Former City Attorney Geoffrey B. Dobson's former law partner, Ronald Wayne Brown, notarized Dobson's rather emotional affidavit, which began with a history lesson and ended angrily with ranting cant opinions, including his assertion that venders "trashed the plaza," producing a "flea market" atmosphere. Judge Howard discounted Dobson's opinions but the artists' counsel noted ironically that the Dobson affidavit's historical narrative establishes longstanding use of the Plaza as a public market..

The City's hired gun, Michael Kahn, also tried to rely upon sworn affidavits of Planning and Zoning Director Mark Knight and SAPD Commander Barry E. Fox and Sgt. Anthony Cuthbert, alleging misbehavior by "street venders."

Judge Howard suggested that the City's affidavits did not support the conclusions in the City's filings. None of the conclusory affidavits gave any dates and times of supposed incidents and set forth unreliable double and triple hearsay. None of the City's affidavits offered any facts critical of the behavior of artists, erroneously attempting to lump them together with "street venders."
The City's affidavits were strongly rebutted by the affidavit of visual artist Gregory Travous, who said none of the incidents involved visual artists, but non-artist venders (including people selling sunglasses, hair-wrapping and toy bears).

In the visual artists' civil rights case, Judge Howard previously declined to allow live testimony, having rejected the City's claim that there were hotly contested facts.

In frustration, Kahn called the supposedly "more expert" Brown to an easel to show Judge Howard locations from which artists are banned and supposed alternative places where artists could sell their art (including a median strip on Castillo Drive, in Francis Field and in the parking lot behind the Lightner Museum and City Hall).

These locations are impractical, artist attorney Thomas argued, and there are few tourists there compared to the Plaza. Attorney Thomas, Judge Howard and the audience found it telling that Knight's photos of supposed alternative locations for the artists showed almost no pedestrians/tourists.

In fact, Judge Howard asked rather pointedly why the City provided photos taken early in the morning, with no people in most of them. She said if the city's point was to show places where artists could market to tourists, its failure to show people there in those places cut against the City's case.

Artist counsel Gray Thomas objected when the supposedly "expert" Brown repeatedly made comments that were "laced with what would be his testimony," rather than pointing out places mentioned in the affidavits. Judge Howard warned, "Limit yourself to what's in the affidavits," stating "I'm going to disregard" Brown's statements about the number of tour buses at the City's $22 million parking garage

Repeatedly disregarding Judge Howard's orders and without ever having been sworn as a witness, Brown continued speaking about matters outside the affidavit. Judge Howard said, "I tried to remind Mr. Brown" not to speak of anything outside the affidavits, noting "he's providing information beyond them," stating "I don't intend to rely upon it."

At one stage, Judge Howard stepped down from the bench in courtroom 10B, followed by her court reporter and law clerk, to scrutinize at one of two maps on the easel.

Judge Morales asked Kahn why newspapers were excluded from ordinance 22-6. Kahn fumbled, "that's a good question," responding elliptically if not coherently.

Throughout the hearing, City Planning and Zoning Director Mark Knight couldn't contain his angst and couldn't stop fidgeting, crossing his legs, wiggling his foot and shaking (no doubt with fear of City Manager Harriss).

Visual artists were previously charged illegally permit fees by the city, which were refunded when artist Scott Raimondo pointed out that this was unconstitutional.

Ironically, the day that the City proposed for the hearing (April 13, 2009) happened to be the eleventh anniversary of the City of St. Augustine violating Sunshine laws to hire William B. Harriss as City Manager (April 13, 1998). Harriss, who has never had a performance evaluation in eleven years, has spearheaded downtown commercial landlords' fight to rid the City of buskers – artists and entertainers – people who draw tourists and acclaim at home and abroad.

On the eleventh anniversary of a date that (like Pearl Harbor) "will live in infamy," the City of St. Augustine was once again in federal court, once again defending against the indefensible – First Amendment violations.

City Manager Harriss was hired without either a proper search or compliance with the Sunshine law. J.D. Pleasant spoke eloquently at the April 13, 1998 City Commission meeting about Commissioners' lawbreaking in hiring Harriss. While then-Commissioner John Reardon wanted annual performance appraisals, Commissioners rejected the idea. While Reardon wanted a national search, then-Commissioner Susan Burk said this would result in hiring an outsider, who might use his experience here as a "stepping stone" to work elsewhere (something that is empirically assumed about any job outside organized crime).

City Manager Harriss' unctuous police abuses -- an "Unwelcome Wagon" directed against visual artists -- is but the tip of the iceberg in the history of government-sponsored bigotry in "the Nation's Oldest City." On June 12, 1964 Rev. Dr. Martin Luther King, Jr. proclaimed St. Augustine America's "most lawless city" in a letter to rabbis -- the ugliness of SAPD and County Sheriff police riots helped convince Congress to break a filibuster and enact the 1964 Civil Rights Act, the landmark law that bans discrimination on the basis of race, color, religion, creed, and gender.

The City of St. Augustine has previously lost several big First Amendment cases, including one to Warren Celli ("St. Aug. Dog" newspaper) and another to the St. Augustine Gay Pride Committee (with Judge Henry Lee Adams, Jr. ordering Rainbow flags on the Bridge of Lions June 7-13, 2005 in honor of 11,000 years of Gay, Lesbian, Bisexual history here in Northeast Florida).

Observers in the federal courtroom believed that Judge Howard was likely to rule against the city and for the artists. Such a ruling would vindicate the rights of visual artists to be left unmolested by the likes of Messrs. Harriss, Knight, Fox and Cuthbert, free to sell their art to tourists without fearing arrests (and criminal records of arrests and convictions) as the price for being an artist in the Nation's Oldest City.

Observers also believed that the City Commissioners might finally change their discredited course -- fawningly supporting Harriss' eleven-year reign of ruin, including his anti-artist, anti-environmental, pro-developer, pro-speculator right-wing agenda (which includes spending tens of thousands of dollars on designing repressive laws). Why stop now?

St. Augustine wants tens of millions of dollars in federal funding for its celebration of its 450th birthday, and the 500th anniversary of Florida (2015 and 2013, respectively), it will have to conform its behavior to the reasonable expectations of our Bill of Rights. Just as Dr. King wrote to the rabbis in 1964 (before the City's 400th birthday), the City's desire for funding gives leverage to those who seek to protect our rights,

President Clinton once said, "the definition of insanity is doing the same old things and expecting different results." Arresting artists is contrary to the peace and dignity of the people of our town.

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