Selling Art on Michigan Avenue
I took the Red Line to the Loop and then lugged my bags to the Blue Line. At the Damen Street stop I got off at Wicker Park. The El allowed me to read further into the Mark G. Weinberg v. City of Chicago. The 7th Circuit Court of Appeals decision is deep! (see links for details) In very short summary - Weinberg, a lawyer and author, sold his book critical of the Blackhawk’s (hockey) team owner out in front of the stadium (United Center) where the Blackhawks play.
The owner called the police on him. Weinberg sued for his First Amendment (free speech) rights. He maintained that his right to offer his speech freely to hockey fans, his target audience, as they entered the stadium, was infringed upon. He eventually won at the appellate level. The City of Chicago, urged on by major league sports owners, attempted to appeal the 7th Circuit Court’s decision (in Weinberg’s favor) to the Supreme Court. The Supreme Court passed on the case letting the Appeals Court’s ruling stand.
Naturally, my interest in this case is in what it tells me about my rights. I am an artist screen printing political-slogan patches and my art for sale in public venues. My other goal is to open up more opportunities for artists to legally sell their art in Chicago. My strategy is to study the laws relating to art peddling and free speech. While selling or giving away my patches, I intend to explore how I am treated when I try to use our free speech rights granted to us by the Constitution of the United States of America. You are invited to read along to experience how free we are in Chicago, home of the brave - land of the free.
I am not a lawyer and I am not giving legal advice. This is my present understanding of the law. I invite - no I beg - others to add to this discussion.
The First Amendment says that “Congress (and by extension - all state and local governments) shall make no law…abridging the freedom of speech or of the press.” In the decision of the appeals court Weinberg v. City of Chicago, are detailed a number of significant points about our free speech rights. It says that whether we sell or give away a book (or our art) does not change the First Amendment. Free speech is protected in traditional public forums. Public sidewalks are traditional public forums. I believe this should apply to public parks, as well.
The City uses traffic-control and public-safety to justify the need for licensing peddlers and for regulating where speech peddling can occur. The City must prove traffic or public-safety are real issues when it uses them for limiting free speech. If there is no traffic or public safety problem, the city has no right to limit my speech. The City must show that their methods are effective in meeting their goals. If they limit free speech and this does nothing to improve traffic or public safety, then why bother limiting our most precious right? Finally, the court stated that the City should not limit more speech than is necessary to accomplish their stated goals. The City did not show how Weinberg was a threat to public-safety or that he interfered with foot traffic in front of or around the United Center.
The other very interesting point that emerged from this decision is that the entire peddler’s license law is unconstitutional as it relates to free speech because it represents “a prior restraint upon speech,” or in lay terms - it allows the City to revoke a license without explanation.
As artists selling original art - our free speech rights should be as important as sports talk. Some Aldermen have added language to the City peddler’s license that forbids peddling anything anywhere in their ward. Others have exempted commercial strips, while the entire extended downtown of Chicago is listed as off limits to peddlers. The City tells us we can give speech away but not sell it. The court says whether giving it away or selling it, speech is protected the same. If the City wishes to abridge our rights in any of these traditional public forums it needs to prove that our speech is a traffic problem or is dangerous to public safety. It must show that limiting speech will solve the traffic or safety problem and that there is no better way of solving that traffic problem or safety issue. Of course, reality down on the street is not so pretty as our rights appear at the level of the 7th Circuit Court of Appeals. Travel with me on this hot day, 7/14/06.
At Wicker Park nothing was happening. The event I sought was on a previous weekend. I began improvising. Two hours later, exhausted, I spread my blanket out in the shade of the Water Tower Place, just off Michigan and Chicago Avenues. I had followed the rumor of a music fest downtown. After I had walked in a large circle and taken many rests from the heat, I took a bus on Michigan Avenue to the Water Tower Place park. I could go no further.
In the shade of the stone Water Tower, in the nook between the front steps with my back against its cool wall, I lay my blanket. What a relief to be out of the sun. I drank deeply from my water bottle. Then I set-up to print. My primary color ink containers I placed in the front for all to see, I selected red and blue to add to my screen. At first I just printed a patch design about Net-Neutrality. My plan was to find out if anyone would evict me from this spot before investing any of my waning energy in setting up a display. There was a steady flow of traffic past this point. People could stop and step in out of the way of others very easily. To those who stopped I gave freshly printed patches and chatted about net-neutrality. After 15 minutes of printing I spread out my patch designs and began to consider selling. I did not put out a sale sign or my t-shirts. In another five minutes of printing a young man dressed in black pants, white shirt, tie and a blue blazer jacket stepped out of the air conditioned Water Tower to approach me apologetically. “You have to go,” he said. “This is a public park and we do not allow peddling of any kind or street performances here.”
“What about my free speech rights? Isn’t a public park a public forum?”
“I don’t know anything about that. All I know is my job requires me to ask you to leave. You can go anywhere across the streets bounding this park but you can not stay on this park.”
“OK, I’m leaving but I want to take a few pictures first,” I said. “Do you mind?” He was already running back to the shelter of the Water Tower’s air conditioning. He had informed me. His next job as security would be to call the police. This I knew. I had yet to sell a patch.
A survey of my options identified the corner northwest across the street from the park to be the only sensible spot in the shade. In humid 90 degree heat I had to have shade. Compared to my previous spot, there was very little traffic but I could be seen printing there from the park. I began to carry my quickly packed bags and the screen with ink drying in it in the direction of that shady corner. Not wanting to leave any of my things too far behind I moved two bags 10-15 yards at a time and then came back with the screen and the other bag. At the end of a planter running parallel with the street bounding the Water Tower Park, I lay out my blanket. “Amazing, it must be the humidity!” I thought. It took ten minutes to move over to my new spot and yet the screen was still printing well. That was a blessing.
I did not spread out my patches or anything for sale. I printed and gave those who visited me the patches. I felt only trouble could be coming my way in this spot even though there was so little traffic at this location that the city could never claim traffic as an issue. Naturally, public safety could not be claimed as a reason to deny me my First Amendment rights without a hardy laugh to accompany it. Why, I shouldn’t even need a peddler’s license to sell my speech if the court’s law ruled this land.
I noticed that the Net-Neutrality slogan caught people asking with their eyes - what? I answered by asking if they had heard of the issue. Most had not. The Internet is being stolen from the people and the people do not even know their future online is being limited in the halls of Congress at this moment. I let people who would listen know that the major media are with the forces pushing to harness the Internet for their private profit and purposes while they find ways to legislate our Internet rights away. Beware - wake-up! It starts with making a fast and sure delivery for some priority e-mail and a slow/unsure delivery for other’s e-mails. It leads to paying the big pipe owners who can choke main arteries to slow some data and speed up priority data. It ends with carriers who restrict access to their subscribers and who determine audience winners and losers. It violates the very spirit of the Internet. Just as China is exploring ways to control the Internet, major companies in this nation are seeking a “pseudo market solution” to create a main-stream Internet presence that is within their control. Destroying the concept of net-neutrality is needed for these big companies to assure their control over us. They are trying to pass legislation before a majority of people know what is going on. This is the essence of my rant to those people who my screen print demonstration attracts.
Even though the traffic was less, I was easy to see. I heard people talking as they passed by. “He’s screen printing.”
“That’s screen printing.”
“Oh look, screen printing.”
Three Teenagers stopped to look closely. I gave them all patches. “No,” they all answer together. They did not know about the net-neutrality. I assured them their future media freedoms were at stake. A man in his twenties had heard of the issue but did not understand it. A woman with a small child stopped to accept a patch. She knew about net-neutrality. “Thank you for doing this,” she said, and pulling out her wallet she gave a dollar to her young daughter and whispered in her ear. The little girl came forward and held out the dollar. I took it and said thank you to her. She danced back to her mother. “Keep up the good work!” she called to me as they walked off.
When they left, a youth in a Hershey’s uniform dashed out to take a quick look at what I was doing and ran back to report to his manager. The tall arching glass panels allowed the people outside to see those inside enjoying Hershey’s chocolate in many forms in the frosty coolness and indulging in the luxurious surroundings. Not long after that while I was printing I noticed a policewoman on a two-wheeled rolling platform hovering over me.
“What are you doing?” she asked.
“I’m screen Printing patches.”
“Are you selling them?”
“Right now, I’m giving them away. But, I’d like to sell them.
“You need a permit to sell them.”
“I have a permit - would you like to see it?”
“Yes,” she said. I pulled out my id-pouch and produced my peddler’s license. She reviewed it then handed it back to me. “The City Council just passed a law that says no peddling north of Superior Street.” she added as if by improvisation.
“How far north? I asked.
Her voice rose in irritation, “To the end of Michigan Avenue,” she snapped. “You can’t sell here.”
“Well, than, I’ll just continue to give them away.”
At this point the manager from Hershey’s in a white shirt and tie engaged the officer. He made it known that he wanted me removed from this spot in front of his store. She was attempting to explain that I was not breaking the law by giving patches away. I decided to document this with my camera. Out of my bag I brought my Nikon digital and popped the lens cap, flipping it on, and opening the LED viewer. I fired off several shots. The officer rolled around from behind the manager of Hershey’s and said “Don’t take my picture without asking me.”
“Can I take your picture?” I asked as I fired off a final shot.
“No!” she said. “Alright, that’s it….” she stammered as I took that last shot. The mood had just changed. I could feel she was moving into confrontation-arrest mode. The manager had let her know he expected me to be gone. She would not grant me even my right to document my own predicament. I had what I needed from this situation. I had the answer to what my free speech rights were at this moment in this place.
I cut her off. “OK - I’m out of here - you get your way, I’m gone - I’m leaving this spot as fast as I can. This spot has bad Karma!” I declared. As fast as I could, I began to pick-up my prints. This made both of them happy. When I looked up the manager was back inside his over-cooled establishment and the policewoman had rolled off but not very far off, I was sure.
So what is Freedom? I laughed a bitter laugh and remembered the time I spent in Majorca, Spain selling leather crafts that I made with a French partner. He and I had hitched together from Amsterdam to Barcelona where we caught a boat to Majorca, an island owned by Spain in the Mediterranean Sea. Franko was still the long time dictator. The year was 1971.
European tourists flocked to Majorca for vacation tours in the early spring time. We found a cave outside the tourist area where we slept by the Mediterranean and made our leather crafts amidst the sounds and smells of the sea. The sunsets were colorful from horizon to horizon. The moquitoes were many and hungry. We applied cheap Spanish wine orally before bed and let the mosquitos feast. Most days we took a lazy stroll into town along the tourist promenade. When we found a convenient location we would throw down a blanket and our crafts. Within a few minutes we had a crowd. Tourists came to Majorca looking for the famed Spanish leather goods. The first store they entered they would be excited by all the leather items. Wishing to see a variety they would try the next store to see what it held that was new and different. The stores were all owned by the state and they all carried the state line of leather goods. By law nobody else could sell anything on the island. After a few days of this they would feel cheated. They even told us that they paid for the same moquitoes we got for free at the cave. When they saw us selling our own creations they would buy. Our problem - the storeowners wanting all the tourist’s currency would call the police.
The police in Franko’s Spain rode motorcycles wearing submachine guns across their backs. We could hear them coming down the two lane beachfront road. One of us was always on the lookout while the other sold. At the signal from the lookout all items were snatched back from the tourists fondling them and in seconds we were strolling into a local cafe or in animated, imitated conversation blending in with the tourists. Eventually they caught us.
We learned, than, that hippies from the north rediscovered our cave annually. We were no surprise to the authorities. Lucky for us we had made enough to pay for a ticket to the mainland or we would have spent some months in the Spanish jail on Majorca.
Yes, folks - in my humble opinion - I have no more free speech on Michigan Avenue then I had in Franko’s Spain. Why should we have to give up our free speech rights for business? Does this suck the cultural life out of Chicago’s street scene for the narrow benefit of a few who wish to make all the money? We get palaces of chocolate and streets cleanly swept of all of Chicago’s cultural authenticity. Is this what the tourist really wants? Don’t they want to see the local artists, too? These are just some initial questions to ponder. Hey, what do you think?