C Drew - Street Artist Adventures

In the Blog spot below a “concerned artist” wrote me with advice. I sent her four questions and then wrote a response to her letter. When I received her answers I added my rebuttal. I had to do this. She had slandered my purpose and offered up misinformation. I blog it because it contains arguments for common misconceptions about our struggle for our rights and the laws that bind us.

LETTER FROM CONCERNED ARTIST
C, maybe I am on the side of The Establishment right now, but don’t you think your life would be a lot easier if you just got the vendor’s license? Yeah. Getting a vendor’s license sucks. It’s expensive, it’s time consuming, and it’s money in the pockets for the city and the state.

I am just as much a liberal as the next person, free spirit, laid back and so on.
But if the rule is there, it’s there for a reason. This isn’t a Jim Crow law where blacks and whites are required to be in separate bathrooms, busses and movie theaters.

Look at it this way: If you get your vendor’s license, the police leave you alone, you have credibility for your work, you get a tax number and the ability to purchase wholesale, and maybe even the chance to open a store, so people can buy your artwork all year round. You could open your store in Bucktown. I take the North Avenue bus every day, and I see storefront vacancies all the time, including one where they give you four months for free.

I am all for what you’re doing. You are a talented artist. I saw it when you were showing off your t-shirt art last summer. If the price for the license is too high for you to pay for, ask for help. Run a benefit. You’ll be using your energy in a much more constructive manner than constantly running from the cops.

MY RESPONSE
She begins by asking herself if she is siding with the “Establishment” and and soon stresses she is a liberal and a free spirit. I begin to sense she is about to violate her own identity in her coming rant. I will clear up the confusion that follows.

Her first statement attempts to trivialize our struggle. “It isn’t Jim Crow…” she says. She suggests I should just buy a peddlers license and then leap into opening my own store in Bucktown – a trendy gentrifying area near northwest of the Loop. Finally she accuses me of “constantly running from the cops.” Ha-ha-ha-ha.

Has she been reading my e-mails? She knows I am not running from the police but seeking to test an unconstitutional law. She is craftily characterizing me as a criminal just as the peddlers license does when I exercise my right to sell art in public according to my First Amendment rights. In the past I had a peddlers license. I had a speech permit. The first day I went out to introduce myself to the audience that frequented my speech corner during the high traffic lunch hour, I was greeted by a bank security guard who called a policeman and he called his supervisor. I had to argue my rights for the entire lunch period while my new audience passed by watching as the Chicago Police Department made me look like a criminal. I can talk about how this system limits our speech from experience.

To those it affects, it is similar to Jim Crow. It is a national problem. The First Amendment giveth and the local governments take away. That is the way Jim Crow worked. The scope may differ but both are civil rights violations. The freedom that the First Amendment promises artists is that they can sell their art to the public in public spaces. This right makes it possible to live by their art as they build an audience which one day might enable them to have a storefront if they so chose. That is how much speech/art is valued by the constitution and the case law evolving around it. Local laws limit the ability of artists to make the leap in their careers from beginner to a storefront. Their speech and their ability to survive by their speech is limited significantly. In Chicago there is not one single open-air art scene where artists can sell their art with or without a license. This weakens our creative social structure and that diminishes our cultural treasure. To put it bluntly, many more artists die on the vine – giving up on surviving by their art and their speech is lost. To this critic – that doesn’t matter much – to me it is a calamity. It makes Chicago into a generic city on the world stage. Let’s keep our eye on the real crime. It is not me testing the law, it’s our (your) rights being violated. Don’t pretend you are supporting artists when you are not. Where is your fight for our rights?

If you have no comparison with what could be, there is no way for you to see what is lost by local laws that limit art activity. Maybe this writer is lost due to lack of comparisons. Perhaps she is reflecting the same type of fear as those who opposed the Civil Rights Movement when it attacked Jim Crow, fearful of the threat of a backlash for challenging the establishment. I ask you to support that first step up that this freedom to sell art represents for artists so we might help support our local economies and live that dream of an expensive storefront in Bucktown one day. However, if we decide that our delight is being out in in public, without excessive overhead, with an ever changing audience, let that be as well. Such is freedom.

FOUR QUESTIONS
After reading and thinking about her letter I fired off these four simple questions before responding to get a better idea of where she was coming from. Her answers with my rebuttals follow.

1 What is the reason the peddlers license is there?
2 Do you think the our First Amendment rights to free speech including the right to sell our speech in public are trivial rights?
3 Do you think what I am doing is running from or running toward the cops?
4 Do you think what I am doing has a negative effect on Chicago (ie is not constructive)?

SECOND LETTER WITH HER ANSWERS

CONCERNED ARTIST
1) What is the reason the peddlers license is there?
I don’t fully know, but it’s there for yours and the public’s protection, making sure you are selling your products legally. Otherwise you look like you’re panhandling, and that in and of itself is illegal. If you were selling apples or some other kind of food, for example, you would have to follow the laws of the Pure Food and Drug Act. You couldn’t sell bad meat or fruit, and the license proves you’re not selling tainted food. If you did you would be making people sick.

MY RESPONSE
Apples and speech are different under the law in the United States because speech is protected by the First Amendment and apples are not. The peddlers license was originally designed to license non-speech vendors (sellers of apples, umbrellas, etc) before 1994. Before 1994 speech vendors were unlicensed and allowed to sell their speech in public without a license. Daley and his council added speech vendors to the peddlers license requirement a year after New York City passed a similar law. When that happened, the artists in New York City fought tooth and nail and won important court precedents for artists around the country. In Chicago there was no organized fight like in New York City but two lawsuits did challenge the peddlers license and demonstrated its unconstitutionality.

It is a privilege to sell food in this nation but it is your right to sell your art. In this nation we make a huge legal distinction between a right and a privilege. The State should not be the one to decide whose art is better by a license as you suggest when you compare the peddlers license to that required for selling meat. Speech is not meat. The public should decide what art is rotten, not the state.

You say that panhandling is illegal. Have you been down to the Loop lately? FACT: Panhandlers have won their First Amendment rights to ask you for a dollar. That is all you can see downtown on the street is panhandlers, not artists, and panhandlers deserve their rights. I’m just asking for artists to have the same First Amendment rights as panhandlers have won in Chicago. Have a heart for the homeless artist who, in Chicago, is allowed to beg but is a criminal if he sells you his art. I’ve written about that again and again which leads me to wonder if you are really reading my dispatches or, if you are, as you seem to be, unaware of the facts I present.

CONCERNED ARTIST
2) Do you think the our First Amendment rights to free speech including the right to sell our speech in public are trivial rights? No. I don’t think First Amendment Rights are trivial. But they have always been open to inappropriate interpretation.

MY RESPONSE
I am glad you admit that artists’ First Amendment rights are not trivial. However, aside from insinuating I might be misinterpreting the First Amendment you do not offer any analysis or quote any cases. Innuendo is so much easier to use than solid logical arguments based on case law. In my writing and on my blog I supply artists and the public with the case law and logical legal arguments for them to consider for themselves what their rights are in America. Check out Bery v The City of New York, or Weinberg v the City of Chicago or Ayres v the City of Chicago. Check the right hand column for those cases. Absorb those three cases and let’s talk some more. Ha-ha! After that we can debate what is “inappropriate”.

CONCERNED ARTIST
3) Do you think what I am doing is running from or running toward the cops?
Depending on the situation, I think you’re doing both. When you run away from the cops, you know you’re doing something you shouldn’t be doing, and when you run toward them, you’re copping an attitude. Either way, they’re just doing their jobs. I think you’re playing with them.

MY RESPONSE
I discussed this in my comments on her first letter. It is an interesting phrase “copping an attitude” and “playing with them (the cops).”

The police are not the problem. I have no animosity toward the police I meet. I am interacting with the police. I am recording and reporting the police response. The police are the messengers for the managers. The managers are the problem. I am simply playing by the rules our society has laid out for any citizen to contribute to society by making improvements to our legal system through the courts. The City managers understand that. The police are in between. I only hope the police will give me fair treatment and not overreact. I come in peace with intelligent discussion of my rights and not with verbal abuse or insult. I am not playing a game. The fight for our rights is serious business. That said, we can make fighting for our rights as fun as possible.

CONCERNED ARTIST
4a) Do you think what I am doing is have a negative effect on Chicago (ie is not constructive)?
To be honest, yes, you are having a negative effect on Chicago. You spoil it for the artists and musicians and photographers who have a right to be there, because they DO have their license. You want to be an exception to all the other street peddlers, street musicians included, who have enough trouble promoting their work in public as it is. You don’t get special treatment thinking you don’t need a peddler’s license. You get in trouble.

MY RESPONSE
Artists, musicians and photographers – artists, musicians and photographers – super-cala-fragalistic-expi-ala-do-sous – what a fantasy. Where are the artists in public? The musicians are greatly marginalized and the artists are absent on the streets in Chicago. The peddlers license bans us from selling anywhere we can make a living and next to nobody uses it to sell art in Chicago because it is useless for that purpose. You know I am not trying to undercut other artists on the street by working without a peddlers license. My intent is on suing the City for our full speech rights so artists can sell their work in public without a license. Even more important – I want artists to be able to create lively art scenes that attract people by their collective activity in public locations of artists choice. I dare you to find five artists with a peddlers license making a living in Chicago. I’ve paid my dues. You have not been on these streets as an artist as I have for the past five years. Good luck in your search.

CONCERNED ARTIST
4b) If everyone just set up wherever they felt like it, that could be a very unsafe situation for walking on the sidewalk, you could be selling something that has not been properly inspected, and an epidemic could take place, if a musician doesn’t use their street license properly, they could get arrested due to a noise complaint. The cops won’t think you’re there legally, you’re being vagrant and you’re loitering.

MY RESPONSE
First Amendment case law demands the City of Chicago write narrow laws when speech is limited to control sidewalk traffic congestion. You support the City’s broad laws that are unconstitutional. The broad law of the peddlers license says no selling art in the Loop. An example of a narrow law would be no selling 20 feet from a doorway, 10 feet from an intersection and there must be 7 feet clear for pedestrian traffic on any sidewalk. The City said homeless panhandlers would block the sidewalks asking for change before they sued and won their right to ask you for a dollar. You can still walk downtown. Amazing!

You are right that without a license I could sell art that has not been inspected. You are right again when you say there could be an epidemic of art in Chicago if a license were not required to sell speech. Maybe a pandemic! Why does that not scare me? Because the City can still write narrow laws to guarantee your ability to walk safely. You will just see art all along your walk. What a catastrophe!

CONCERNED ARTIST
4c) Especially in the Loop. The Loop is crowded enough as it is. The cops have enough trouble making sure the automobile and pedestrian traffic is moving smoothly. If you think you don’t need a license, the City of Chicago will decide the visual artists, photographers, actors, and musicians who have licenses shouldn’t have them either, and no form of street sale will take place. You’ll ruin it for the musicians and artists that DO follow the rules.

MY RESPONSE
Here comes the fear part, if we fight for our rights, the City will clamp down like Nazis and make all speech illegal. Why bother – that is already the case for artists. I still dare you to find those five artists with peddlers licenses making a living in Chicago. You do not get or maintain speech rights by not fighting for them. You only lose rights by not fighting for them as you advocate here. In America you still must fight for the rights promised by the Bill of Rights or others with a dictatorial agenda will use the democratic system to take your rights away. History proves this to be true. Study Chicago.

CONCERNED ARTIST
4d) I have friends who are street musicians who are very talented. I also see artists along Michigan Avenue selling their drawings and making money sketching, and they’re good too, but the license proves they have a right to be there. They have their own hassles with City Hall. They have had to fight endlessly to have the right to play their music and do their dances and their artwork on the streets, because this is their livelihood. That was the compromise for performing and selling visual art.

MY RESPONSE
You do NOT see artists selling drawings and making money sketching along Michigan Avenue with a peddlers license because the peddlers license does NOT allow this activity on Michigan Avenue. Maybe you ought to read the peddlers license law. I have it posted on my blog at c-drew.com, see the column on the right for its link.

The City hangs musicians and artists separately by different laws, one dysfunctional license for artists (peddlers license) and another for musicians and performing artists(performers license). I tell the musicians I talk to that once we organize to fight our battle as visual artists, we are going to build an organization to defend the rights of all creative workers protected by the First Amendment.

CONCERNED ARTIST
4e) A license means you are willing to comply with safety rules. You look like you used to do sports when you were younger. Didn’t you learn that rules are your friends, and you don’t talk back to the coach?

MY RESPONSE
We live in a democracy not a dictatorship. I allow you to talk back to me, I get to talk back to you and we get to talk back to our elected officials. Also, there are three branches of government under our system, the executive, the legislative and the courts. The legislature passes laws and the courts determine if the laws passed are constitutional. Citizens may sue in court to allow the courts to determine what is constitutional. That is one tool citizens have in this society. I am playing by the rules.

In summary you did the best job you were able to in presenting the Establishment position and it is very weak. I hope you will open your mind and not be so fearful of the consequences of artists’ fight for their full speech rights. I believe you have the fire of freedom hidden within you heart. Let it out.

At the beginning of this week I promised news about our progress in challenging Chicago’s peddlers license.

Monday I suggested we try selling at the Watertower Place just to get the Chicago Park District policy on record as opposing the selling of art on “their” public property. It may have backfired for us because our video volunteers crowded up on the responding cop. At first he became agitated by the attention and tried to intimidate the video artists but they were seasoned vets and kept filming while insisting calmly that they did have the right to video a public servant in public while they are on duty. Once I got him to admit that I was not allowed my First Amendment protection on this park board property because, he said, it is run by a private company and that’s their rules.

This tactic needs to be exposed and confronted. Who is the “private” company at Watertower Place? What is the written agreement between the company and the Chicago Park District? What is “policy” written and unwritten of the Parks and of the company? Who can research this for us? We need this knowledge for the future. But our priority target is the peddlers license.

So I split across the street to tease the security personnel of Hersheys into calling the beat cop. The only thing with this is that we had just met the beat cop and he did not follow me over to Hersheys. Maybe, I should have been more arrogant. I gave in too easily. Maybe he had better things to do. Maybe?

Hersheys, this was the same space I was threatened with arrest several years ago for selling my art-patches. I had a peddlers license then. The cop didn’t even know the law but she was ready to enforce the wishes of the Hersheys security personnel. When I took her photo she freaked out and I agreed to leave before she vamped on me. Today, I called out my “art-for-sale” in front of Hersheys flagship store in violation of the peddlers license for over an hour and a half without a cop showing up.

I began to move along Michigan Avenue selling art. After another forty-five minutes I met the same beat cop. He explained again that I needed a permit to sell but unless someone called in a complaint he would not act. By now, he was calm and very polite. I knew our mission was hopeless on this stretch of Michigan Avenue. I called for consultation.

My video person suggested I sell alongside Millennium Park. We walked down that way selling in front of a number of swanky stores testing the security in hopes of a complaint. We stopped at three or four Victoria’s Secret wing-stands. In front of the huge spread wings encased in a 6 foot plastic box there is a marble step with feet painted where they suggest you stand. Tourists have their photos taken with the wings behind them to make themselves look angelic in Chicago. I stood for photos in my red art-for-sale poncho at each pair of wings we passed. Ha-ha. The tourists bought some of our local art. What a crime! Ha!

At millennium Park we found a confrontation immediately, without any trouble. However, it turned out the City’s trick here, again, is to hide behind a private maintenance company, MB Real Estate. The MB Real Estate security guard let me know fast that I was not allowed to solicit anybody about anything in Millennium Park. Then, he claimed that the City had passed a law that made the sidewalk along Millennium Park a part of the park and that MB Real Estate is contracted to provide security over it, as well. Apparently, the rules we must follow are whatever the company says they are. Interesting.

So now MB Real Estate is allowed to deprive Chicago citizens of their First Amendment rights as if they are administering private property and not a public park. This is not constitutional behavior. The City is not allowed to violate our First Amendment rights and they are not allowed to delegate to a private company the ability to violate our First Amendment rights. A public park is a forum for the public. Check out the Seattle case for the latest lawsuit on this subject which the “people” have won. We need to find the law they speak about if it exists and demand a list of MB Real Estate’s written rules for the area they administer. Is there a volunteer who would like to research this? A law or journalism student who would like to contribute would be ideal – or anybody with a zeal for the job.

But I want to confront the peddlers license first and not this illegal delegation of responsibility for our rights to a private company, not yet.

So I crossed the street to try to a location where two beat cops had threatened me with arrest one year ago for giving away art. I wasn’t even selling art then. I wasn’t violating any law. They arrived fast too, within 20 minutes. When I asked what law I was violating, the lead policeman told me they would read me the law once I was down at the station. This day, a year later, as I violated the peddlers license law, I did not see a policeman anywhere. I spent half an hour there and nearly an hour just half a block north outside the Washington Street door of the Chicago Cultural Center selling patches without seeing a single beat cop.

Wednesday, 10/21/09, the weather was in the 60’s and I went out again from 3-5pm with video backup. This time the video crew pretended not to be associated with me and filmed from across the street. I mainly worked the north side of the Chicago Cultural Center.

When it was apparent that no one from the Cultural Center would complain, I walked around to Wacker and State which is a speech corner defined in the peddlers license code. I had worked that corner the year I paid for a peddlers license. That was 2006. I applied for and received a speech permit. Then the security officer from the Bank on that corner checked me out within 15 minutes of my arrival. She did not listen to me when I explained I had a speech permit to be there.

I had to argue through the lunch hour with the policeman she called and his supervisor for the right to sell art with a peddlers license and a speech permit in my hand on one of the few designated speech corners in Chicago’s Loop. I had my receipts for my license, a copy of my permit application and the text of the peddlers license code in a folder in my leather bag. I had a printout of every design I was permitted to sell by the Department of Business Affairs and Licenses. Finally, once the best of the day for selling – the lunch hour – was over, they decided to let me sell. They promised to check out my story and deal with me if need be the next time I returned. They would have no need, I knew.

Once I established myself as having a peddlers license and speech permit the bank’s security checked me out promptly again the first time I worked each month to see if I had renewed my speech permit. I only had a half hour to test the Bank this time but no one came out to ask me what I was doing or to ask if I had a permit to do it there. I was disappointed in them. What has happened to their efficiency?

My video volunteers were disappointed too. We went home beginning to wonder if the City intended to let me sell without enforcing the peddlers license.

I spoke with a friend that night and bragged. “They’ll take me in tomorrow!” I bet. The October 22nd day of protest against police brutality takes place then at the Federal Building plaza. “I’ll be giving away a Carlos Cortez anti-police-brutality patch and dancing around in my ‘Art for Sale’ costume.” I explained. “I’ve been there before. They bring out the calvary – police on horses and officers in bubble wrap with batons at the ready with helicopters hovering around – they hate us. If I wander off after that they will not forget I was a part of the protesters. Yeah, and I’ll remind them that I am violating the peddlers license, too,” I laughed with my friend. We laughed but then my friend turned serious and became very concerned for my safety.

The next day, Thursday, 10/22/09, I printed a hundred patches of the Carlos Cortez design. I headed toward the Loop. It was overcast and sprinkling rain. As I crossed over to Federal Plaza the protest speaker was explaining the killing of a young Blackman by a Chicago policeman. The young man was shot in the back and left to lie on the street for a long time where he died from loss of blood. The Calvary was not out today. There were no officers in riot bubble-wrap. “The City is broke – must be broke,”I exclaimed out loud, seeing this. I had editorialized about the unnecessary cost of police overkill at protests in years past. Now even the City appears to agree with me on this issue. Ha! It looked like a small handful of officers were assigned to the entire event. Just enough to maintain traffic control when we go on our traditional march through the Loop I estimated.

They were well into their agenda when I arrived. Art-patches with a safety pin attached flew from my hands as fast as I could thumb them free without dropping them on the wet ground. The speaker announced the march route well before I could give half of those gathered a patch. So, beginning at the tail end of the march I worked my way forward giving out free patches to all who would accept them. We chanted and marched on the sidewalks close to the passing public. Those with signs pushed them forward toward those we passed. Without bubble-wrapped officers standing between us and the public our message struck home more forcefully. When the City could afford it they were willing to pay any cost to cripple our First Amendment right to bring attention to their abuse of power to our fellow citizens.

Some people in the March knew me from before. I get around. Many wondered who this guy was giving out free art-patches but only a couple reacted to me with suspicion and refused the art-patch. I was able to give everyone who wanted one an art-patch by the time we arrived at City Hall. The march stopped at City Hall with several banners facing the street while a speaker gave a speech about the “stolen lives” followed by our chants. “Shot in the back – and that’s a fact” and “The whole damn system is guilty as hell.” The police investigate themselves in Chicago. By the time anyone else gets any evidence in a fatal shooting of a citizen the police have already informally come up with their own “official” story. HA-Ha-haaa!

Once we returned to the Federal Plaza I tried to interest one of the two video volunteers covering the October 22nd event to help cover me as I attempted again to get busted for violating the peddlers license. Both were busy and one stated “They aren’t going to bust you. They don’t want the publicity.” They did not want to follow me around town for nothing. I did not blame them.

I left out on my own, with my camera in my hand, ready to document any conflict as best I could. With the whole history contained in this blog any, court will have a sense of the conflict, I figured. I will take enough photos to document the event my surroundings to illustrate the legal issues at hand.

From 2:00 to 4:30pm I walked selling – hawking, “art-patches by a dozen local artists.” In front of CitiBank the security guard watched me from the picture window before retiring to a security station near their main entrance. I saw him talking on a phone there. Did he call for enforcement? If so what did the police tell him they would do? Would I spy a beat cop coming my way soon? I hawked my art-patches looking hopefully around for the sight of an officer on a bike or on foot. I worked this spot for well over half an hour waiting for something to happen but nothing did.

The day ended without police speaking to me. For years I said I wanted to pick the time and place to confront the City but it appears now, that they intend to do the picking of the time and place. From reading the history of the struggle for artists’ speech rights in New York City (1993-present), the police there would wait until they found artists alone and then bust them when there was no one with a video camera around. Is that what is happening here? Time will tell. And when time tells me, I will tell you in this blog. Pass the word about my “Street Artist Adventures.” It is about to get interesting.

Crossing Their Line!

All I want to do is to sit, print and give art away – that is all! Is this simple act too much for the America of today? Of course, I would also like to have my First Amendment right to sell my art in public without the prior restraint of a peddlers license but that is too much for America today in Chicago!

I went downtown to the Chicago Picasso Plaza to meet up with the Critical Mass. Critical Mass is a massive group of bike riders who meet up at the Chicago Picasso Plaza every last Friday of the month at 5-6pm after work to ride bikes around a predetermined route through the City streets, stopping cross traffic as they go. On a mass ride we take over the streets we ride on. The Daley Plaza where we meet should be called Chicago Picasso Plaza. Chicago Picasso Plaza has more of a ring to it. Daley inspires the wrong attitude for a majestic work of art. Daley permits petty authorities to harass speech and art on the plaza and on the streets of Chicago. Picasso is the artist from France who lampooned such petty authorities and bureaucracies with his sculpture. When the pompous “Chicagolites” of Picasso’s day, Daley senior and his functionaries, came to Picasso hoping to bring some culture to Chicago, he gave them this sculpture.

True culture will come to Chicago only when Chicago respects its culture makers – its artists.

All summer I have come down to the Chicago Picasso Plaza to meet up with the Critical Mass. All summer I’ve printed art patches and given away art on patches. Gradually my presence is making headway for our Art Patch Project with the widely flung network of bikers that encompasses the entire metro region. I have never been a problem in anyway. I never blocked anybody from walking or left any mess behind. Most have enjoyed my presence on the Chicago Picasso Plaza. No one has complained of my presence to me. Why would my speech be banned from the Chicago Picasso Plaza? Why would you discourage artists at all around a grand work of art. Art should attract art in a cultured society – in an open society.

Suddenly – you see the photos - out of nowhere, first the security guard, then three officers came to hassle me. What would a bystander think? Many would think I had committed some type of crime. A crime is in progress but I am not the criminal. The most interesting evidence I have of the crime is the photo with the Picasso, the three policemen, the American flag and the security guard still trying to argue his weak case from the edge of the photo. In order to get to the bottom of this “who-done-it” I need to explain to some readers a few things related to art/speech and the First Amendment of the U.S. Constitution (…make no law abridging the freedom of speech…).

Who am I? I am a thirty year veteran of the community art movement that grew out of the 60’s and 70’s in urban America. I am exploring the state of the artist on the street in Chicago, the center of our nation, a nation that claims to be exporting freedom abroad. I believe the real fight for freedom is right here, in Chicago. I express myself through screen printing with a squeegee and ink on cotton patches.

What is your voice? Your voice in terms of art theory or First Amendment case law is the method by which you communicate your ideas to others. A singer sings, an orator speaks, a painter of oils illustrates with a brush, a mime mimics, a sculptor sculpts, a sax player blows…. Therefore art is speech and the courts hold that art is protected by the First Amendment. Sometimes the court does argue about what is art but it is better that the court make this decision than the policeman on the beat.

The artist is a citizen who polishes their voice. The right to free speech is the most cherished of rights. Artists should be encouraged to express themselves in public in an open society. If society limits the speech of the most polished speakers in public then free speech is greatly damaged and democracy is tarnished. The measure of artistic freedom on the street is a reflection of freedom in society. One is related to the other. To eliminate artists from public spaces removes society’s creative voices from a daily presence and thereby decreases the most polished and motivated examples of free speech in the general public. This must logically have some chilling effect on speech overall. To increase the freedom of artists is to increase the freedom of everyone.

When artists are free to create in public there will be a richer tapestry of creative activity to stimulate the senses and the ideas of passers by. This will be available for all who are aware on a daily basis. The more citizens practicing and polishing their voices, the more vibrant the community discourse. This is what the First Amendment is meant to protect. If you can’t sell your speech in public you must get a different job. Then, you will not be able to speak as often and as effectively as you should be able to. This is why First Amendment case law protects your ability to sell your speech in public as well as your right to give your speech away in public. It protects the vibrancy of social discourse by providing speakers with the right to survive by their speech.

So why am I giving my art and the art of others away on the Chicago Picasso Plaza? It is well known and accepted by Federal Court judges that an artist who sells his art in public has the same right to this activity as an artist who gives his art away. Federal Court cases stress again and again – there is no difference under the law whether the speaker is paid or they give their speech away. Yet, across this nation cities write laws that limit the selling of art and other speech in public. They are able to do this because the public is not aware of their rights to sell their speech in public. People also don’t understand the value that is lost when artists’ (when all of us) lose this right to sell our speech in public.

The public understands my right to give the art away. So, I give it away as a means of educating the public about our rights which are being violated. By giving my art away, I prove that this act is not disruptive to traffic. Your safety as a pedestrian is the basis the City uses to limit my ability to sell my art in public. When I sell my art they say it is a traffic problem. But when I give it away, in the same space, it is not a traffic problem. It rarely is a traffic problem. It is some other type of problem that the court does not accept as good enough to violate my First Amendment protection. The City is deceitful in court.

How does First Amendment case law protect my right to survive by my art (speech). The First Amendment basically says no branch of government may pass a law abridging our right of free speech. Over the years the writings of federal court judges on cases brought to the court have evolved into the following rules:

a) The government must have a compelling need to write a law (example: the public safety of the pedestrian).

b) They must write a narrow law (example: no selling 20 feet from a crosswalk) that effects speech the least and which is tailored to the compelling need the law is intended to address. Broad laws limiting speech (example: no selling speech in the Loop) are not allowed.

c) Provide an ample alternative as viewed from the speaker’s point of view.

d) Prior Restraints on speech are unconstitutional. A license is a prior restraint on speech for those who are unable or can’t afford to obtain one. This could be due to its cost or the bureaucracy of obtaining it or because it is denied/revoked for any reason such as debts owed the City.

What does Chicago do?

Chicago requires a license that acts as a prior restraint on speech. If you do not have the money or if you owe the City any money or if the City decides it should be revoked, you lose your right to sell your speech in public. The City treats your speech right like a privilege they can deny at will. The City then writes into the license code broad (not narrow) laws that prohibit vast areas of the City from speech/art vendor access. Access is denied based not on traffic needs but on the whims of the Aldermen whose district the prohibited areas are in. No viable alternatives are provided by the City to counter the great limitations it puts on artists’ ability to sell their speech in public.

In short, the City violates every aspect of First Amendment case law when it comes to artists’ right to sell their art in public to survive by their expressive work. This has stunted Chicago’s art market and its public market place of ideas and discourse. The public can’t see what is lost because it is missing. They have no comparison to visualize a different way of life.

The City has no law against giving art away anywhere in the City. The public universally understands giving art away is no crime. It would look very bad to be arresting artists for giving away their art in public. I am again giving art away exploring our speech right to sell art/speech in public. I have selected the same spot where I have printed on every last Friday of the month all summer long. In this spot the setting sun is to my back and a marble seat at my back helps shade the small screen I use to print art on cotton patches.

I had been printing for about an hour. Volunteers helped me by passing out our art patches with fliers pinned to them to every Critical Mass cyclist on the Plaza. I am in a conversation about the way Chicago treats its artists with a small group of bicyclists when I see out of the corner of my eye a security guard for the building management approaching. “…and here’s an example of what I am talking about.” I add nodding in the man’s direction.

He peers down at me and asks with a quizzical smile, “Do you have a permit for that?”

“I don’t need a permit to give art away.”

“Well, you can’t do that here.” His tone turns stern.

“Sure I can. I’ve done this all summer long. It is my First Amendment right to give art away in public. What law am I breaking?”

“This is not the public. This is private property.”

“Of course this is public property. Tax payers paid for all of this.”

“This is a private company managing this building. I can get a policeman to tell you to leave if you wish?”

“Yes, get a policeman. I want to know what law I am breaking!”

He went off to find a policeman. I went back to printing and discussing what had just occurred with those around me. One guy suggested that the security guard might not even come back with all the confusion of the Critical Mass gathering.

“Oh-no, he’ll definitely come back” I said with past experiences to support my opinion. “That’s why I have this camera and why you are so valuable as witnesses to what they say and do. You are my best protection.”

“You need a video camera.” another guy said.

In a few minutes the security guard was back with not one but three police officers. Artists must be a tough lot in Chicago to need three police as backup to confront one old artist giving away art on the Chicago Picasso Plaza. I shot several documentary photos as I explained I was only giving the art away, that I have a First Amendment right to do so, and I asked again the older officer, who took the lead by talking to me, what law I was breaking. None of the three policemen seemed able to tell me what law I was breaking or if any written rules existed regarding use of the Plaza by the public.

Several of the Critical Mass riders who I had given art-patches to began arguing with the other two officers and the security guard over why they were attacking me for giving away art when there was obviously no reason for them to do so. It began to get heated. I did not want anyone to get arrested but I was happy they dared to speak their minds.

The elder policeman repeated to me that the Chicago Picasso Plaza was run by a private management company that made the rules for the Plaza and all they wanted was for me to move off of the Plaza onto public property. I continued to advance the argument that the Plaza was paid for by public money, that it is public property, that I am fully within my First Amendment rights and that there is no reason they can give for hassling me except they want to shut down my speech activity.

At this point the elder officer revealed new information to me. He said, “If you would just move off the plaza onto the City property which is just across the line running even with the bench you are leaning on everything would be fine. That is not an unreasonable request.”

So, they had drawn a line about one foot the other side of where I was sitting. It was their important duty to order me to move a few feet. I tried to imagine the City’s compelling reason for this action. However, the reasons I came up with a federal court would not consider compelling, the need to save face for the security guard or the need to establish the Chicago Picasso Plaza managers’ right to bar legitimate speech activity from their grounds. I was amazed.

I was amazed especially because for two years in a row the same Chicago Picasso Plaza security team claimed to me that their property extended to the curb. Now they say it extends only to the edge of the Plaza furniture. Did a law change? I made a mental note to ask for written documentation on where the Plaza ends and the sidewalk begins at my next opportunity. I suspect the Chicago Picasso Plaza management firm makes up their rules as they go along.

I mulled their request over for a moment. What was the compelling reason to hassle me at all? None I could imagine. Yet, they were offering me an ample alternative – one tile away and I was not ready to sue. “OK,” I shrugged. “I’ll move.”

This averted a confrontation. The security guard saved face. The three policemen could go back to their real jobs. It dislocated for me a bit. The sun shone on my screen making printing more difficult. So with the help of one of the guys that stuck up for me, we moved a trash can to block the sun and I went back to printing art patches to give away.

The volunteer who had promised to help finally showed up too late to help out as a witness. I eagerly explained what she had just missed. The latest defining case on a city hiding behind a private management firm as an excuse for avoiding the First Amendment is Berger v. City of Seattle and can be found linked to the side panel of my blog or at the bottom of every e-mail I send out weekly. The City can’t delegate its regulatory power to a management company and exempt public space from the rule of law. Lawful speech activity can’t be barred from the Chicago Picasso Plaza by any rules the company makes up. They must follow the First Amendment, have a compelling need, write a narrow law that applies common sense to the need and provide me an ample alternative.

I will blog my mistreatment by these keepers of the the Chicago Picasso Plaza Every opportunity I have. Chicago’s artists owe it to art and to ourselves to liberate the Picasso from the tyrants who sneer at our free speech rights and encapsulate the Picasso in an anti-art atmosphere. One day, after we sue the City of Chicago for our rightful place on the streets and in the parks, we will return to free the Picasso, as well. The Picasso should be one of our symbols of artistic freedom in Chicago and a space where our creative activity is protected.

The crime being perpetrated on the people of Chicago is the on-going violation of our speech rights across the board, from the Chicago Picasso Plaza management firm’s actions, to the streets and parks where artists are banned from selling their art expressions, to the way Chicago authorities treat all their citizens who protest the war or challenge the status-quo, making up rules as they go and ignoring our rights as they wish. If we are “the land of the free and the brave” we will change this. Please let us know how you can help.

America and Daley’s Chicago are Different

(with respect to your rights)

It was a rough day in the fight for freedom. No one died from enemy fire but many rot on the vine regularly due to severed opportunities. On a lesser note, my jar of peanut butter broke on the way to Sox Park. This was to be my breakfast. At Sox Park, when I reached into my leather bag to find my scissors a shard of glass from the jar sliced my index finger which bled profusely.

After printing for less than an hour heavy thunderclouds appeared overhead. It began to rain lightly just as the Sox Park crowd swelled. To avoid a soaking I packed up fast and headed to the “L”. Few people had stopped to pickup a patch today, I reflected back as I rode the “L” home.

Still, I was amused. I am always thoughtful after printing in public. For me it is like an art opening. I get to meet people and have conversations. The conversations can lead anywhere or nowhere but the most common thread that connects them is the honesty expressed by my visitors. They open up to me. I am seated below them and they occupy the power angle so do not feel threatened by me. I am harmless and hurting no-one by my giving away my art patches.

The exchange that amused me happened just after I had wrapped my bloody finger in a blank cotton patch and duct taped it firmly in place. My “FREE BASEBALL PATCHES” sign was taped to the sidewalk and 8-12 damp prints lay just printed on the ground when I noticed the thin officer stride across 35^th street. He left his car parked by the east end of the stadium.

“What are you doing here?” he asked.

“I’m giving away free baseball patches,” I replied innocently.

“What’s that?” He pointed to my clipboard. “Is that a petition?”

“Its our “Increase Chicago Creative Spaces” petition”

“The what?…”

“It’s to create more space for artists to sell their art in public in Chicago.”

“Do you think Daley’s going to allow that? He ask with a smirk.

“It’s our First Amendment right in America to sell our art in public”

“Oh, I agree with you on that,” he took a step backward disengaging, “but America and Daley’s Chicago are two completely different places.”

“While even Daley can’t argue with the Federal Courts,” I claimed.

“Don’t get me wrong,” he said retreating toward his car – “I think you should have your rights but in Chicago – Daley does whatever Daley wants – who’s going to oppose him?”

Before I could argue further he was gone. His tone had not been sympathetic to the Mayor. Then I remembered that Daley’s budget cuts run deep and cast aside promises made to the Police Union. Could it be the police themselves are feeling the iron fist of Daley? How ironic.

This is a short photo essay on the July Chicago Critical Mass.

FreeSAM Artist Supports
the Cubs Gear Vendors

Alderman Tunney’s proposes to add to the areas where vending is prohibited in Chicago. His changes will be the death of the peddler of Cubs gear in the area of Wrigleyville. Less peddlers, less variety, higher prices. As an artist defending the right of artists to sell their art in public I support the peddlers because in Chicago artists are thrown in with non-speech peddlers. We require the same peddlers license to sell our art.

Not all laws passed are legal. In 1994 Daley pushed through a revised peddlers license which took artists’ First Amendment right to sell art on the streets away by requiring artists to also get a peddlers license. Artists and non-speech peddlers are now bound by the same rules. The ugliest rules are the three pages of prohibited districts in the peddlers license municipal code that have no bearing on traffic patterns. “Prohibited Districts” relate to the political desires of those behind the Alderman for the wards they are in. Broad laws banning speech like this are unconstitutional. Non-speech peddlers are not protected by the First Amendment - artists are!

Is the selling of baseball gear a non-speech activity? Should it be protected as a First Amendment right? As a business activity, without the protection of the First Amendment, it is but a privilege and able to be regulated much more easily than the sale of speech. Art is speech.

Is baseball not an expression of community pride and self-identity for the fan? Is the right to express yourself as a Cubs fan in the greatest possible variety of legal ways to be defended under our constitution as a speech right? Should there be a place for community-artist developed designs in Wrigleyville? Can we ask the baseball fans themselves what they think?

The Cubs loving public will suffer less variety and higher prises. Chicago will have less character in Wrigleyville with independent vendors out of the way. The gradual expansion of the prohibited districts will continue in Chicago until someone asks why. Why are we eliminating people’s opportunity for survival at a time when more need even a street sales gig to get by. Should the privilege of business owners be allowed to violate the rights of artists and eliminate the jobs of many for the benefit of the few?

It is our claim that in Chicago, until we artists stand up for our First Amendment rights to sell our art in public, no one else will be able to sell much in public. I support the Wrigleyville vendors. I hope they will unite with the Cubs fans to demand Alderman Tunney support what is best for people and fans. Artists – we too should stand up against this peddlers license abuse of our speech rights.

ROBERT WAPAHI Art Patch Loose in the Land

Technorati Profile