"Just let artists be artists downtown" by Tom Cushman

One of my heroes, lawyerTom Cushman, has a column on criminalization of art and music in the Sunday, March 6, 2016 St. Augustine Record:

Guest Column: Just let artists be artists downtown

Posted: March 5, 2016 - 4:05pm

By THOMAS ELIJAH CUSHMAN

St. Augustine Record

For the past 20 years the city of St. Augustine has been attempting to ban visual artists from painting, drawing and other methods of creating and selling art on the streets of our city, activities protected under the First Amendment of the United States Constitution. A city commissioner’s first act is to swear to “preserve, protect and defend” that Constitution.

For those two decades, I’ve had the honor of defending citizens accused of the “crime” of creating art — artists threatened and jailed by law enforcement officers, acting (often unwillingly) on orders from the city officials. The late artist Gregory Travous was arrested numerous times. In almost every case, the county court found the ordinances to be unconstitutional when they were challenged. 

In 2009, the city passed more repressive ordinances, after their previous ordinances were declared unconstitutional. The artists engaged attorney William Sheppard and his firm (and me) in a 2009 federal case. The artists won.

One of the city’s specious arguments was to suggest “alternative venues,” allegedly suitable places for artists to paint, draw and sell their art. These included the median of Castillo Drive and the Lightner Museum parking lot. Federal Judge Marcia Howard was not impressed. She issued an injunction. The city then sought a settlement and paid artists’ damages and attorney fees.

We foolishly thought the city had learned its lesson, and would stop enacting unjust laws. Unfortunately, we were wrong. 

The federal injunction applied only to artists and their constitutionally protected art. It did not apply to peddlers of sunglasses, hot dogs, snow cones or other flea market-type junk. In response to the injunction, the city quietly spread the word that sellers of previously prohibited items not protected by the First Amendment could create a flea market in the Plaza. (See “A City Contrived Crisis” youtube/mnYnKQpHsiQ). City officials intentionally created a crisis which then justified oppressive new ordinances. The new ordinances again included the artists’ constitutionally-protected art.

Artists were not allowed to be artists. The city again made it a crime for them to paint, draw or create art in any manner in the historic districts. A child could now be charged for using a coloring book on St. George Street, the Plaza, or other places where the tourists visit. Tourists are the artists’ primary market.

In 2015, artists met with the city commission to seek a solution. Four city commissioners refused to discuss enacting a reform ordinance, even though Mayor Nancy Shaver said “our streets are not lively.” 

Once again, the artists sued. On Feb. 24, another preliminary injunction was granted by Federal Judge Brian J. Davis, prohibiting further violations of artists’ civil rights. 

Worldwide, tourists love artists and governments encourage them as an economic driver and cultural amenity. Why does St. Augustine criminalize artists? The city has, in the past, been known as an “artists’ colony.” 

Last year, St. Augustine held a “plein air” art competition, but artists were prohibited from painting in the historic area. 

The Rev. Dr. Martin Luther King Jr. called this city “the most lawless city in America,” and in his Birmingham jail letter quoted our city’s namesake, Saint Augustine of Hippo: “An unjust law is no law at all.”

Enough. 

Let artists be artists. Commissioners should enact an ordinance stating that none of the challenged ordinances apply to constitutionally-protected expression. Then let’s unite and promote our city as an artists’ colony.

Cushman is a Board Certified Criminal Trial and Appellate lawyer in St. Augustine.