Fighting to Sell Art in Parks

Efforts by struggling painters in Laguna Beach to sell their artwork in parks and other public spaces have been dealt a blow by a federal court judge in a free-speech case being watched by artists across the state.

The decision comes as plein-air painters in art-oriented cities like Laguna Beach, Carmel and Santa Monica have been pushing for the right to sell their art in public, saying they can’t afford the skyrocketing prices of renting gallery space.

Laguna Beach artists challenged a city ordinance that restricted such sales in public places, arguing that the law infringes on their 1st Amendment right to free expression. But U.S. District Judge Gary L. Taylor ruled last week that even though artists are protected under the 1st Amendment, the city has the right to control the activity with municipal ordinances that discourage all types of commerce in its parks.

“People can paint in city parks if they want--and a lot of people do,” said City Manager Ken Frank. “But we don’t want people selling any merchandise, whether it’s T-shirts or kayaks or art. That’s the bottom line.”

The dispute, however, is far from over. Laguna Beach artist Michael Lavery vows to appeal the ruling and hopes it will be a national test case.

“I have nothing to lose and everything to gain,” he said Friday as he finished an oil painting of Laguna’s scalloped coastline.

Similar battles have occurred elsewhere, including in New York, where artists won the right to sell their work in public.

But Lavery’s fight has struck an especially sensitive nerve in Laguna, where some people question whether the city is betraying its artistic roots by cracking down on artists.

“Our founding fathers were artists,” local impressionist Marge Kinney said Friday as she conducted an outdoor painting class. “I think as long as they don’t have a lot of paintings out, and someone comes by and wants to buy it because they like it, why can’t they? . . . When you see the police coming around, it’s not fun trying to do what you love.”

Lavery began his campaign about a year ago. His lawsuit is centered on sections of the city code that taken together, amount to a blanket ban on art festivals, concerts and other commercial activities in public parks.

City officials say there are plenty of other venues where artists may sell their work, and that they are free to meet buyers in private to complete a deal.

But Lavery argues that the ordinances are vague and broad, and violate his right to free speech. And with Laguna Beach gallery rent topping $20,000 a month, he and other artists say they have no choice but to earn their living on the streets and in the parks.

Advocates insist that there have never been plans for large art swap meets, as city leaders fear. And they say their presence is much less intrusive, and their business less lucrative, than other regulated activities, such as wedding parties found in the park every week.

In his ruling, Judge Taylor clearly sided with the city in finding its ordinances clear, fair and “not unconstitutional on their face.”

The restrictions reasonably guard against “discordant and excessive commercialism” in city parks, and protect local merchants from “unfair competition presented by rent-free business enterprises,” according to the 11-page decision.

Taylor pointed out that painting is still allowed in the parks. And if artists want to sell their work outside galleries, there are other channels available, including the Internet and home studios.

“In a public forum the government may impose reasonable restrictions on time, place and manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of information,” Taylor wrote.

John Henry Merriman, a Stanford law professor who has taught a course about art issues since 1972, said the Laguna Beach case may go further than any other in California in addressing the sale of art in public places.

“I don’t think there have been any significant state or federal court rulings on this issue,” he said.

There is no clear national legal precedent. In what is arguably the strongest ruling on the issue to date, the 2nd U.S. Circuit Court of Appeals in 1996 found art to be a form of free speech that, like newspapers and books, can be sold freely on New York City streets. The U.S. Supreme Court refused to take up Mayor Rudolph Giuliani’s challenge to that ruling.

Robert Lederman, a plaintiff in that lawsuit, said that besides the Laguna case, he knows of a handful of others pending in Hawaii and Florida. All are similar and are being watched closely. The fights are tied to a shift in the marketplace that favors the bigger interests of galleries, he said, and they are typically being waged by a “lone artist who becomes the lightning rod” while other artists wait out the verdicts.

Lavery knows he is considered an annoyance, and at times even crazy, by people who “don’t understand who I am or don’t understand my situation.”

He is undaunted by the criticism, or his latest legal setback.

Lavery estimates he has pocketed a few thousand dollars on his best days at Heisler Park, relying partly on such sales to help him pay his bills.

“There’s a lot of artists out there who want me to win this because they’re struggling to make a living too,” he said.

So on Friday he stood behind his easel at Heisler Park, an instant magnet to tourists and other passersby as he painted white clouds into his latest rendering of Laguna.

“Wow! You’ve done it justice,” said one onlooker.

“Very nice. That’s incredible,” another fan said.

This painting was not for sale. He had already found a buyer. Even if it were, he explained to the crowd, he could be arrested for trying to sell it.

“I don’t get it,” said Judy Cummings, visiting from Santa Cruz. “This adds local color. This is culture. This is like going to a museum right along the coastline.”