"Artwork is a logical inclusion for the High Line; artists, gallery owners and art collectors were among the earliest supporters of its transformation into a public park space, and it runs through some of the most culturally significant neighborhoods of Manhattan. "
By Geoffrey Croft president, NYC Park Advocates
After a rash of negative publicity, the city has reversed its earlier decision to arrest artists for vending on the High Line esplanade, located in the heart of Manhattan's art community.
The Parks Department had previously authorized Park Enforcement Patrol (PEP) officers to make three arrests there. Now these arrests will undoubtedly end up costing the city's taxpayers, as courts have repeatedly ruled that First Amendment vendors do not require permits to sell on city parkland. The Parks Department was forced to back down after Bloomberg administration officials stepped in, according to a source.
On Friday, December 11, A.R.T.I.S.T president Robert Lederman, artist Jack Nesbitt and their lawyer, Julie Milner, attended a 45-minute meeting with park officials at the agency’s headquarters in Central Park. They met with Parks Commissioner Adrian Benepe, Legal Council Alessandro Olivieri and Deputy Commissioner Kevin E. Jefferies, the head of Park Enforcement. Only days earlier the trio had authorized the artists’ arrests. During the meeting, Mr. Lederman personally served Mr. Benepe with a Notice of Claim indicating his intent to sue.
On Saturday, Mr. Lederman and three additional artists spent approximately four hours vending on the chilly High Line without incident. This was a markedly different situation than just three weeks ago, when, according to Mr. Lederman, Friends of the High Line employees, including "High Line Rangers," had surrounded and repeatedly harassed him, threatening arrest.
"Not only were the High Line people friendly but one of them told me they have a sign in their office now that says—it’s a memo from the Parks Department—‘Do Not Harass the Artists, ’” Mr. Lederman said.
"We had a very pleasant time there," he continued. "Probably half the people on the High Line stopped at our stands, and we had four very good quality artists there, including one guy that had photographs of the High Line from 1960s.”
The Meeting
According to Mr. Lederman's account, Parks Commissioner Benepe started the meeting by apologizing for the arrests.
"Believe it or not, he said, ‘I guess we didn’t know what we were doing.’ And then he said, ‘We’d like to discuss this whole issue with you, and apologize to you for not returning your e-mails, your calls.’
“They told me, ‘We know you’re going to be going back there, and that’s not a problem, we’re not going to arrest you.’ Amazingly enough, they were very agreeable to the things I had to say, but the one thing they drew a line [saying], “That we’re not going to be able to do”—you won’t believe what it was," Mr. Lederman recalled.
“I said, ‘I would like you to write a letter that says artists have a First Amendment right to sell in the parks subject to the limitations in the Park rules.’ They said, ‘We cannot do that.’ Unbelievable. That’s already what the consent decree says and what the lawsuit says and what the laws of the City of New York say—that they wouldn’t do. It fits in with their whole agenda of trying to deny that this was a First Amendment case, which is nonsense.
“I’ve known these guys for years, and they’re usually very kind of arrogant with me, even though they do sometimes meet with me," Lederman said. But at this meeting, the three were on their "best behavior."
“There’s two parts to this. One is a policy part, and the other is that you ordered me to be falsely arrested—that ain’t going away. But as far as the public policy part, I’m certainly willing to discuss any part of it with you at any time.’ And we did discuss it at considerable length.”
Playing Dumb
During the meeting, Mr. Lederman said, he took out a memo from PEP commander Raymond Brown spelling out the rules and rights of artists to sell in any park in New York City. He carries the memo when vending.
“I brought out that memo and gave it to each of them, and they looked at it like it was from another planet, like they’d never seen it before—or had any clue—I’ve been emailing it to them for two weeks. It’s their own memo—they looked at it like it was in hieroglyphics, as if they didn’t know there were any rules for artists. That’s what they usually tell the press. ‘They’re unregulated; we have to regulate them.’ We’re totally regulated—just don’t make us get a permit or a license. Which, of course, to them is equivalent to us having free run of everything."
Mr. Lederman has been previously arrested 43 times over First Amendment vending issues. To this meeting, he came prepared.
“I served [Benepe] with a personal lawsuit, against him personally, not just as Parks Commissioner—him personally—because we know he ordered the arrests. In fact, all three of them ordered the arrests. The irony of the whole thing is that I’m there six days later with the guys that had me arrested, and they’re apologizing. Clearly it wasn’t them that decided to apologize; if anything, they would have arrested me again if it was up to them."
“They can see I’m not playing games with them. They know there’s no way for them to win the lawsuit. They can make a policy about artists on the High Line, and then we can challenge them on it when and if they do. But this (lawsuit)—zero chance of them of winning. So I’m sure they will be settling before it goes much further. This is a lot of potential liability for them individually, collectively, the High Line. [I have] tons of evidence about how these arrests came about—who initiated it originally and certainly the legal council for the Parks Department [Alessandro Olivieri] knows I don’t need a permit. So if he’s ordering me to be arrested for not having one—I mean, it goes beyond contempt of court—I suppose it’s a criminal act.”
Up until now, the city has attempted to couch the crackdown solely as a safety issue. There are many places on the esplanade which would not be appropriate to vend due to the narrow paths, uneven concrete paving, and large crowds that visit during the mild weather. Under the previous policy however the esplanade was easily accommodating paying concessionaires in one of the High Line's two block-long tunnels. Mr. Lederman was arrested in one of them.
"That’s where they said they agree that that’s an appropriate place, by the way,” Mr. Lederman recalled. “It’s certainly obvious.”
The city, eager to publicize their new conciliatory tact and to try to control the damage, told a Daily News reporter of the meeting even before Mr. Lederman was notified.
“They were spinning it,” charges Mr. Lederman. “In fact, when they set up the appointment, they said the one thing we’re gonna ask you is to '[not] tell anyone about the meeting until after it’s over.’ So they obviously wanted to have the first shot at framing what went on there. And they did to what they think is their advantage, but it clearly—I mean, it clearly shows that I was in the right and they were in the wrong.”
Parks Department - No Response
A Walk In the Park provided a list of detailed questions to Parks Commissioner Adrain Benepe and to the Parks Department pertaining to Mr.Lederman's assertions. Despite requests for comment, the Parks Department did not respond. Friends of the High were also forwarded questions, they also declined to respond.
While the Parks Department refuses to answer questions, it dumped another of its patently insulting statements last week:
"Parks is actively exploring all options on how to make fair use of this unique public space, which just opened in June," a DPR spokesperson told the Villager last week. "We love all New Yorkers, artists and non artists alike. The issues are complex. We know it’s an important matter and we’re addressing it—how to use the High Line fairly and legally for all."
The issues are hardly complex: A lone artist was arrested on November 21 on a sparsely populated 2.8 acre stretch of public parkland. Sixteen days later the same person was arrested again, along with another artist. Zero effort was made by the city to accommodate Mr. Lederman, to protect activity that is clearly protected under the First Amendment or to resolve this issue until after his rights were repeatedly violated.
Obviously, the Parks Department was trying to send a message: Parks Commissioner Adrian Benepe told Mr. Lederman that 29 commercial concessionaires have been allowed to vend on the High Line since its opening earlier this year. Whatever “fair use” is, it should not include arresting people before the Parks Department has finished "actively exploring all options." Based on these extreme actions, the Parks Department offers a very strange definition of "love."
"In the meantime, [Benepe] had 29 different vendors up there—how was he protecting public safety then?" Mr. Lederman asked. "One artist is too many; 29 other vendors that have a permit—no problemo. What kind of bullshit is he talking about—‘public safety’—whenever he brings it up, it’s utter nonsense.”
The numerous commercial vendors each occupy more space than these artists. The difference is, unlike the permitted concessionaire, the money generated by the artists does not go into city coffers. But that may soon change. The city is currently negotiating a sole source concession agreement with the Friends of the High Line, the group that manages the city property. The agreement would allow the group to keep concession revenue generated on the High Line.
"We think it’s a good idea to designate and try out a limited number of vending sites and provide access to this space as we continue to move this process forward," a Parks Department spokesperson told the Daily News last Friday.
According to Mr. Lederman's account of Friday's meeting, the Parks Commissioner was more specific about the number of free speech vendors he wanted limited on the High Line: His plan included a number based on a ratio to commercial vendors, a plan Mr. Lederman was adamant he could not support.
"[Benepe] said he wants to put three artists up there and three food carts. I said, you can put a hundred food carts or a few—I don’t mind how many or few—but First Amendment rights are not equivalent to hot dog carts. So the number of food carts you have has nothing to do with how many artists can or can’t set up in a public park. You can make as many or as few concessions as you like as the Parks Commissioner—but you’re not going to use that as the benchmark for how many First Amendment speakers there are. I made that point very clearly and I think they certainly heard it. And what they’ll do with it is anybody’s guess. I’d certainly sue them —a separate thing—if they made that rule. On behalf of [A.R.T.I.S.T.S.]—the group would sue them.”
All this could have easily been avoided. Common sense dictates that the Parks Department should have asked questions first and communicated with the parties before attempting to arbitrarily create a new policy and to have people arrested. The High Line has some unique design features that the city has attempted to exploit in their quest to not accommodate First Amendment activities on parkland, activities that are soundly grounded in established law. Nobody should be allowed to create adverse public safety conditions, but Mr. Ledeman argues that rules meant to protect the public, if properly enforced, have long been in place.
Mr. Benepe's admission that he didn’t know what he was doing, if accurate, is absurd. The Parks Department knew exactly what it was doing. The decision to arrest Mr. Lederman was calculated. Mr. Benepe is intimately aware of these issues; in fact, his dealings with Mr. Lederman go back more than a decade. Mr. Benepe has been involved with dozens of Mr. Lederman's arrests. The double-standard of allowing 29 commercial vendors while arresting and re-arresting the first free speech vendor at the High Line is beyond contempt. It shows not only a blatant disregard for the law but disrespect for the core values and principles of our country. For more than 150 years, public parks have served as the primary stage for free speech activity, including public dissension. One may not always like what is being said but protecting the right to say it is paramount in a democracy. The Bloomberg administration may not demand accountability from its parks commissioner but that does not mean the public has to go along with it.
The city has long had an ax to grind with Mr. Lederman, but the taxpayers will now be forced to pay for this childish decision. The Bloomberg administration's promotion of the Parks Department’s current leadership, with its top-down approach to planning and obfuscation is simply not working. For the people who have to deal with these issues day-in and day-out we are tired of the games. This episode is yet another policy decision that has come back to bite. When will this Parks Commissioner be held accountable? If history is any indication, then the answer is not-any-time-soon. (Under this administration who knows, he'll probably be "promoted" to a Deputy Commissioner or something.) The Parks Department is far too important of an agency to be run by any person whose sole responsibility is to "serve at the pleasure of the mayor."
Friends?
It is disturbing to hear stories about Friends of the High Line employees pressuring and even threatening the PEP officer to arrest Mr. Lederman the first time on November 21. These actions are particularly disconcerting considering the central role played by the art community in developing this public space. Friends of the High Line was always eager to publicize this relationship when that suited its own goals.
The High Line’s "connection to the arts has always been strong,” the Friends’ website proclaims. “The Artists, art dealers, and gallery owners in the neighborhood were some of the High Line's first supporters."
According to Mr. Lederman, the city’s dual exploitation and abuse of artists is entirely consistent: A.R.T.I.S.T. was created after the MoMA, the Whitney and many SoHo galleries joined neighborhood Business Improvement Districts to support the arrests of artists during the Giuliani years. The Friends of the High Line’s website dedicates an entire page to its relationship with the art community, including lavish descriptions of public programs. The group even employs a full-time curator and director of arts programs.
"One of the many features that make the High Line so exceptional and rich is the presentation of contemporary art in, on and near the park. Artwork is a logical inclusion for the High Line; artists, gallery owners and art collectors were among the earliest supporters of its transformation into a public park space, and it runs through some of the most culturally significant neighborhoods of Manhattan."
"The presentation of art on the High Line, then, serves both artists and the public," the website continues. "The High Line is expected to attract a million visitors by the end of its first year, ranging from neighborhood residents to international tourists. For artists, the High Line offers an opportunity to reach a larger and more diverse audience than typically offered by most arts institutions such as commercial galleries or even museums. For the public, an encounter with an artwork in the public sphere can enrich their experience. A broad range of artists and media will help expand notions of what constitutes public art, as well as where, when and how it is presented."
One would think that the Friends of the High Line would have made every effort to accommodate artists instead of actively trying to discriminate against them. Apparently the First Amendment vendors who sell art don't fit in with the carefully manicured image the High Line has tried hard to cultivate. Unfortunately, the Friends of the High Line has taken a page directly out of the Bloomberg administration’s management manual, but the heavy hand is not helpful or sustainable in the long run. An important fact to remember is that the High Line will be around long after this administration is gone. In other words, don't burn your bridges.
The High Line has taken some hits recently—and rightfully so. While the policy of the current parks commissioner is to dismiss and deflect criticism by minimizing public concerns, the people who run the High Line are under no obligation to do the same.
An enormous amount of public funds—$153 million so far—has been committed to building the High Line. That money could have been spent in communities that desperately need their already established parks fixed up. We must not forget these funds were given at the expense of other parks. With the High Line’s extraordinary funding comes a responsibility.
Public safety is of utmost importance, but safety and free speech are not mutually exclusive. We strongly hope that the High Line is a successful public space, but that will take cooperation. A little common sense, and a lot less arrogance, could have avoided this mess.
To be continued . . .
