Art Speech in an Open Society Debate

After years of working organic matter and turning the soil in my garden it is beginning to become soft and fertile.

On December 2^nd, 2009 I stood out on State Street in Chicago wearing a red poncho with clear sandwich bags safety-pinned to it filled with art-patches by different supportive artists whose designs are entered in the Art Patch Project. My goal was to test the Chicago Peddlers license law. Among the two dozen designs by a dozen different artists were two of my own.

I was arrested on two misdemeanor counts, one of selling art without a peddlers license and the second for selling art in a prohibited district outlined as outlawed for all vendors in the peddlers license law.

On this blog photos from my garden will be woven into my discussion of the First Amendment and artists' rights, citizen's rights, to sell art and other forms of speech in public.

The double charge for one “crime” is actually appreciated because the second charge pinpoints a specific example of the unconstitutional nature of the peddlers license when applied to speech. The fact that it is broadly written - excluding speech sales from broadly defined areas of Chicago. The prohibited district I was charge for selling in encompasses the entire Loop. How convenient! I expected to be released later that evening. Six hours later a 1^st class felony charge of audio-recording my own arrest was added to my charges. I was kept over night in the coldest cell available (45 degrees or less), fighting hypothermia. I survived and was shipped off to county jail for processing the next morning.

The theme is one of growth. We are growing a new future with the peaceful use of art to educate our public to their rights and what they are missing.

I had thought long and hard about what I would have with me to sell that day. I also had two t-shirts for sale but they were in my bag and undisplayed. One artist had told me I should only take my own art on my test. That advice went unheeded. My goal was to seek a precedent that would create the most opportunity for artists possible. In the future I could see the Art Patch Project – our non-profit art initiative - morphing into a way for artists to survive economically by their art. Artists could sell their art on patches along with the art of other artists and help seed the creation of public art scenes in Chicago.

In my mind, the poncho I donned could be a prototype of a sales cape that could be worn by grass-roots art entrepreneurs who bring the expression of local artists right to the public. Our goal – to enlarge the cultural market place of ideas in public. Also, we want to encourage the local art market and emerging artists by creating economic opportunities for artists to thrive by their art.

After this action I received a letter from a man I knew had tested similar laws in Nevada and other southwestern cities in the 9^th Federal Circuit. He was upset with me. He wanted to know if I was fighting for “artists rights” or if I was fighting for “everyone’s rights” to sell art in public.

These statements may encounter difficulty becoming accepted. I will change and grow too.

He claimed, emphatically that if I fought for everyone’s rights, I would lose. It was the goal of his legal actions to enshrine “Fine Artists” as among the most protected individuals under the First Amendment and to draw a line declaring anyone selling someone else’s art as unprotected or at least less protected.

His first letter was four pages. I commented on it on my e-mail list briefly saying only that a controversy is apparent between the eastern and western Federal Circuits over what is art and who is protected when it is sold in public. He responded with a 13 page letter that expounded further on his previous claims. I took him seriously and began to re-read portions of “Free Speech in an Open Society” by Rodney Smolla. This defense of my actions should be built on a solid historical, philosophical and legal foundation. I invite all to correct me.

For this movement to have a firm base we need a space to create a democratic discussion of the real issues by people who care for truth and freedom.

Mr. White claimed that “Original Artists,” the creators of art, are the only persons that should receive the fullest protection of the First Amendment based on the fact that it is self-expression that the First Amendment protects. That is his theory of speech.

In the first chapter of “Free Speech in an Open Society” entitled “The Case for an Open Culture” the three theories calling for free speech are explained. The three are, the Market Place Theory, the Free Expression and Human Dignity Theory and the Democratic Self Government Theory. All First Amendment case law is built on a foundation of one or more of these theories. Once the foundational theories of free speech are understood then the multitude of unique First Amendment complexities are better able to be appreciated. First Amendment case law is enormous covering every aspect of speech to ever create a controversy that reached a federal court.

Yes - I know this garden is controlled by me. Ha-ha...but as we progress you will see how I garden and the results.

The Market Place Theory says “truth” is best advanced by a free trade of ideas in an open market place. The market place of ideas appeals to our optimism that good will finally conquer evil. It believes truth has a stubborn persistence. Because “truth” must often battle forces of money, power and dogma we should be more protective of free speech, not less, out of concern for its vulnerability. It is better to error on the side of more speech than on the side of less speech. It justifies free speech as a means to an end – truth.

The Free Expression and Human Dignity Theory justifies free speech as an end in itself – as a psychological need for a healthy self-esteem and thus a healthy society. Speech results from the human ability to think, imagine and create. Once the freedom to think is accepted – the freedom to speak follows. It is a social need of all humans. Mr. White’s claim that the First Amendment protects self-expression falls under this theory of free speech.

Yes, I thin the garden but I don't dictate what grows. Most of what I grow comes up year after year on its own. I just add organic nutrients.

The Self Governance Theory is the most accepted of the three theories of free speech. In a democracy the Self Governance Theory requires free speech as a means of participation in democracy, to pursue political truth, to facilitate majority rule, as a restraint on tyranny, corruption and ineptitude and, finally, for political stability. The felony charge for audio-recording my own arrest will be proved unconstitutional due to an application of this theory of self governance (restraint on tyranny, corruption and ineptitude).

The First Amendment protects all citizens speech rights equally. Art is protected as speech in Bery vs NYC and other recent cases such as White vs Sparks, Nevada which echoes Bery in its art definitions. The categories of art, paintings, photographs, pictures, films, drawings, engravings, prints and sculptures are listed as protected.

These greens were the first of the year. Deborah (my wife) and I ate a third of a pot apiece they were so tasty.

Note, in these cases, it is the forms of communications whose sale is protected and it it is also the speaker who is protected. The speaker is the person disseminating the speech and not necessarily the creator. This is so because the market place of ideas is made up of not only the creators of ideas but also the purveyors of ideas (speakers). Individuals are able to express themselves through the ideas they proliferate.

If it is only the “original artist” whose right it is to speak in public or to sell speech in public, the market place of ideas would be small indeed. The regulations required to enforce such a standard as “original artist” would be oppressive, as well. What happens when an artist dies? Can not the family or heirs continue to promote the art and ideas of the late artist in public or must his ideas die with him? If political slogans on t-shirts are accepted by the court why not art?

Mr. White also claims that the medium on which the message is transmitted is important in denying protection. He quotes Mastrovincenzo vs NYC – an isolated case – where the artists’ lawyers declined to appeal allowing the ruling to stand that art on hats and t-shirts is not protected. This is an outrageous case whose verdict must be challenged. This case claimed the utilitarian value of hats and t-shirts on which the message was displayed was more important in determining that the speech should not be protected than the content of the speech. This remains an unsettled issue. It contradicts Ayres vs Chicago in which political t-shirts are considered to be protected by the First Amendment. All my art is on t-shirts or art-patches and many indigenous cultures express themselves largely on utilitarian objects. We need a less culturally bias definition of art. Protecting only “fine art” is not a goal of mine. I am fighting for everyone’s right to full speech rights. I come from a tradition of community art in which everyone is a potential artist.

A true discussion needs everybody to speak up.

Mr White’s opinions seem to be more influenced by what he feels the general public understands as worthy of First Amendment protection and thus - easy to sell to the confused public. Also, mixed in there seems to be what he personally feels should be protected as “Fine Art.” He is entitled to his opinion. He says he would like - enjoy - debating the issues. So would I. Please consider this a first installment on that debate. A prelude of what is to come…. For those who would enjoin this debate I recommend reading “Free Speech in an Open Society” and the First Amendment case linked on the right. We are establishing new national standards. Your voices are powerful.

Thank you Mr. White for starting us off in this direction. I will be posting everything I get at http://groups.yahoo.com/group/free-artists/ and a copy of the final text from my relevant blog posts. Click over and join the discussion. Then send your responses to free-artists@yahoogroups.com because your voice is valuable. Help us educate America to one of its real values, Free Speech.