Ruling on Sales Angers Artists

Efforts by struggling painters in Laguna Beach to sell their artwork in parks and other public spaces has been dealt a blow by a federal 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 rights of free expression. But U.S. District Judge Gary L. Taylor ruled last week that even if artists are protected under the 1st Amendment, the city has the right to police the activity through 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 test case for artists across the nation.

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

Similar battles have erupted elsewhere, including New York City, where artists actually won the right to sell their work in public. But Lavery’s fight has struck an especially sensitive nerve in Laguna, where some ask whether the city is betraying its artistic roots with its crackdown.

“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 against Laguna Beach 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.

To city officials, a display of more than one painting might as well be an illegal art show. They say that there are plenty of venues in which artists can sell their work, and that artists are free to arrange with buyers to meet in private to complete a deal.

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

Advocates insist that there have never been plans for large 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 the wedding parties that invade the park on a weekly basis.

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

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

What’s more, he pointed out, painting is still allowed in the parks. And if artists want to sell their work outside of galleries, there are other channels available to them, including the Internet and in home studios.

John Henry Merriman, a Stanford law professor who has been teaching a course about art issues since 1972, said the Laguna Beach case may go further than any in California in addressing the sale of art in public places. “I don’t think there has been any significant state or federal court rulings on this issue,” he said.

Nationwide, there is no clear legal precedent. In what is perhaps the strongest ruling on the issue to date, the U.S. 2nd 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 suit, said he knows of a handful of other cases pending in Hawaii and Florida. All are being watched closely, and share similar dynamics.

The fights are tied to a shift in the marketplace that favors the bigger interests of galleries, he says, and they are being waged by a “lone artist who becomes the lightning rod” while other artists wait out the verdicts in the background.