Hon. Joseph L. Boles

Mayor/City Commissioner

19 Riberia Street

St. Augustine, Fla. 32084

            Re: Proposed City Ordinance/Artists Permits

Dear Mr. Boles:

I am writing on behalf of the National Coalition Against Censorship, an alliance of 50 national non-profit organizations united in defense of free expression, concerning the St. Augustine’s proposed new ordinance 2007-23, amending section 22-6 of the City Code and banning visual artists from displaying and selling their work in the Plaza de la Constitucion and other areas in the City’s historic districts.

The new ordinance, which will replace the recent practice of allowing artists to sell their work in the park without a permit, comes in response to a court ruling (State of Florida vs. Travous, Sala, and Chuites, October 2007), which declared unconstitutional the arrest and citation of a couple of artists, whose work did not fit in the narrow definition of art set by Assistant City Attorney Robin Upchurch in a memo to the police. The memo defines art as “paintings or copies of paintings, photographs, prints/books and sculpture (marble, wood, stone sand, wire).” As Judge Tinlin correctly noted in Travous, however, art can be many other things (quilts, masks, pottery, etc.) and Travous defendants’ free expression rights were infringed when their type of artistic expression was discriminated against.

It appears that, unable to define what art is with sufficient clarity, St Augustine is opting to ban all artistic activity from the most trafficked parts of the City. This solution, while severely infringing the free speech rights of artists, might not withstand the strict constitutional scrutiny applied to any exclusion or limitation of First Amendment expression in a traditional public forum. Not only does the City have to prove a compelling government interest in limiting expressive activity, it also has to offer comparable alternative venues for expression.

While the City asserts that limiting the sale of visual artistic works in certain public areas serves a compelling governmental interest in keeping them safe and free of congestion, it appears that artists have worked in the Plaza since the permit requirement was lifted without causing any problems. Moreover, the alternative spaces proposed in the new ordinance for artists to sell their work (e.g. Francis Field, Davenport Park) have very little pedestrian traffic and are therefore not suitable or comparable areas for this purpose. If the new ordinance is passed, the City will have failed to meet its legal requirement to allow free artistic expression in meaningful public areas.

In addition, the proposed ordinance 2007-23 impermissibly differentiates between written expression (newspapers are exempted from any sales restriction, including the requirement of a permit) and visual expression. This constitutes an impermissible act of discrimination between types of expression and makes the City’s code vulnerable to constitutional challenges.

The congestion problem City authorities are facing can be solved much more easily by providing better guidance to police as to what may constitute constitutionally protected visual art. Congestion can be avoided by then limiting the permits issued to other vendors or entirely removing them from the park. Contrary to the City Attorney’s claim that the sale of “cheap sunglasses” could not be restricted if at the same time the sale of artistic work was permitted, commercial goods, which do not have expressive content, are not protected by the First Amendment and their sale in public places is subject to restriction by the government. The government may certainly regulate purely commercial activity separately from expressive activity.

Artistic activity, as the Court ruled in Travous, can be defined as activity that has a predominantly expressive purpose – it comprises painting, sculpture, books and photographs, as well as a wide variety of other items if the primary purpose for which they are designed is communication. Mass produced sunglasses, whose purpose is to shield the eyes from the sun, cannot, by any standard, be said to have an expressive purpose. Low enforcement officers can certainly be trusted to make such distinctions. There will be, of course, borderline cases where a vase, which is functional, may be also a uniquely crafted sculptural object. In such cases authorities would well be advised to err on the side of free speech.

 Allowing for the display and sale of art in your historical and cultural districts, where the public will have free access to art of all kinds, will serve an important purpose not only for the City and its economy, but for your citizens as well. We hope the City of St. Augustine will stop the process of pushing street artists away from there the public can see them, a process, which began 10 years ago when artist were banned from the St. George Street area to the Plaza de la Constitucion. Artists are not a blight, on the contrary, they make our communities lively and safe, attract tourists and lead to economic development. We hope the City of St Augustine finds a better way of balancing its interest in keeping public thoroughfares and parks free of congestion with respect of the free speech rights of artists and the art loving public.

Sincerely,

Svetlana Mintcheva

Director

Arts Program

CC:

Robin Upchurch, Esquire

Assistant City Attorney

City of St Augustine

PO Box 210

St Augustine, FL 32084