Teachers Guide

Teachers Guide
1. Mission
a. Educate
i. Educate people about two types of purely expressive activities,
artistic self-expression serving no other purpose than to be
expressive and particular message expression and the freedoms
afforded to those who conduct these types of ‘purely expressive’
activities in parks and on sidewalks.
b. Advocate
i. For the adoption of business license and street vendor permit
codes that provide an exemption for purely expressive activities
conducted on traditional public for a.
c. Encourage
i. We want to encourage individuals to conduct fully protected public
displays of expression because we believe in the healing power of
self-expression and the transformation that occurs when we
encounter new ideas and the creative people who make them.
2. An Artists Rights
a. This presentation is designed to help you understand a portion of your
First Amendment rights as an artist as they pertain to the use of public
spaces to both share your expressions, and sell them.
b. Not all artistic expressions are fully protected by the First Amendment
allowing them to be sold on traditional public fora without a license. By the
end of this presentation, you will be able to determine which of your artistic
expressions are fully protected, how and where to exercise your rights as
an artist, and if you are able willing, to be confident in securing your rights
when they are threatened.
3. Paper Please
a. Not all types of expression rise to the level of the full protection of the first
amendment. Those receiving limited protection, like commercial speech,
are subject to more regulatory restriction than fully protected expressions
like artistic self-expression.
b. Business & Vendor Laws
i. Over the past 50 years, every city and town has adopted laws
governing commercial activity of all types, including the selling of
items in public spaces like sidewalks and parks in order to protect
the health, safety, and welfare of the community and provide
revenue to governments to help fund their operation.
ii. These laws require an individual wishing to sell items on the street
to obtain a business license and a street vendor permit prior to
conducting business. Because these law are designed to regulate
commercial speech, they are perfectly legal.
c. No Exemption for First Amendment Protected Expression
i. The problem, however, is that in most cases, these laws do not
provide an exemption for fully protected expressions.
d. Artistic Expression equated with Commercial Expression
i. Without the exemptions in place, it is highly unlikely that an officer
or city official is aware that you have these rights.
ii. Some would recognize your right to perform or display art free of
restrictions, but few would acknowledge that you have a right to sell
the art under the same First Amendment protections.
iii. Thus, artistic expressions have erroneously become equated with
commercial expressions giving the city the impression that it has
the power to require a license or permit
e. Censorship as Prior Restraint
i. This is not the case. Any requirement to apply for a license or
permit prior to conducting fully protected expressive activities
constitutes prior restraint.
ii. In First Amendment law, a prior restraint is government action that
prohibits speech or other expression before it can take place. prior
restraint is strongly disfavored by the courts, and, with some
exceptions, generally unconstitutional.
4. Cases
a. Bery V. NY
i. Visual art, like painting, drawing, photography, print, and sculpture
are equivalent to the spoken & written word when they are
indistinguishable from pure speech in the sense that they serve no
other purpose than to be expressive.
ii. The city argues that they provided an alternative channel of
expression with the opportunity to apply for a vendor license.
Unfortunately there was a very long waiting list. The courts
determined that alternative channels must be accessible not just
available.
b. White V. Sparks
i. Artistic Expression need not convey a particular philosophic,
religious, or ideological message. Even abstract works can be fully
protected.
ii. The sale of fully protected expressions is in itself, a fully protected
expression.
5. Understanding Your Rights
a. *NOTE Just follow the slides and check for understanding
6. Fully Protected Artistic Expressions
a. *NOTE Just follow the slides and check for understanding
7. Original Expression
a. Examples
i. You have the right to collect remuneration for performing a song,
dance, or play written by someone else, because aspects of the
performance express your unique perspective.
ii. You have the right to paint an abstract painting, in the likeness of a
Jackson Pollock, make prints and exchange both the original and
the prints for remuneration.
b. Purely Expressive Artistic Expressions
i. An expression is considered purely expressive when it is
indistinguishable from pure speech in the sense that it serves no
other purpose than to be expressive.
Some forms of artistic self-expression meet this standard and

others do not. Those that do meet the standard can be exchanged
for remuneration on traditional public fora without unnecessary
restrictions.
c. Artistic Expressions w/ Dual Purpose
i. Although expressive, these items are not purely expressive,
therefore they do not rise to the full protection of the first
amendment and the sale of such items is subject to regulatory
restrictions.
d. Hypothetical #1
i. The framed picture is the example of a fully protected artistic
expression. There other two items have a dual purpose and
therefore receive limited protections. The shirt can be worn and the
mug can be used to hold your coffee.
ii. In theory, you could set up a display on traditional public fora and
sell the framed photo, while wearing the shirt and drinking from the
mug.
e. Hypothetical #2
i. The digital download of music is protected. You could play live and
exchange the digital download for remuneration.
ii. The other items have a dual purpose (toy & jewelry)
f. Time Place & Manner
i. It is legal for a city to establish narrowly tailored time, place, and
manner restrictions so long as they are equally applied to all
persons and manner of expression. If there are no specific
ordinances in your community governing fully protected expressive
activities, remember that you have the same responsibilities as
every other person in the park, on the sidewalk or in the plaza. You
must be in compliance with all health and safety regulations that
apply to all persons.
g. Time
i. Time restrictions regulate when individuals may express themsel
ves. At certain times, the government may curtail
or prohibit speech to address legitimate societal concerns, such a
s traffic congestion and crowd control.
h. Place
i. Any where on traditional public fora is acceptable, so long as you
do not impede pedestrians or create a danger to yourself or others.
ii. Your community may have guidelines already established for
commercial sidewalk vendors. If so, adhering to those is always a
safe bet.
iii. If not, following these guidelines to protect the safety of yourself
and others.
i. Manner
i. Follow these guidelines in the absence of specific regulations in
your community.
j. Special Events
i. Many communities host special events throughout the year:
farmers markets, arts and culture festivals, and food truck events
are a few examples. Often times these events are held on
traditional public fora and are free and open to the public.
ii. The First Amendment protects your right to conduct fully protected
expressive activities inside the boundaries of these events and you
do not have to pay a fee to the event organizer. All other health
and safety guidelines (see below) should be followed.
iii. In our experience, purely expressive activities conducted inside the
boundaries of a special event are likely to draw the most attention
from authorities. These events are big business; the event
promoter and city benefit financially. Your actions threaten their
business model and upset their commercial clients who pay for
their space. Be prepared if you are challenged by the event
promoter or law enforcement (see below).
k. Encounters with Law Enforcement
i. If you are privileged enough to be able and willing to assert your
rights (not all people in all situations can and for good reasons),
your actions can protect your rights, and the rights of more
vulnerable classes of people who are unable to secure their rights
for themselves.
ii. Keep in mind that officer is most likely not aware of your rights and
you will have to educate them.
iii. No matter how well you assert your rights, the officer may order you
to cease the expressive activity. Always follow orders
iv. With the documented evidence, you have the leverage you need to
make changes in your community. Contact your local
representative and tell them your story.
l. Tips for Success
i. *NOTE Just follow the slides and check for understanding

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Some forms of artistic self-expression meet this standard and

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