Not a Pretty Picture
For a man who's dedicated his life to creating art, Steve White sure knows how to make a mess.
When he got out of the Army in 1969, protests over the Vietnam War were getting ugly. It was then, White says, "I decided I just wanted to spend the rest of my life bringing beauty into the world." And so for the past three decades, the 51-year-old White has been traveling across the country in his RV, selling his oil paintings at art fairs.
Although three of his celestial paintings hung for twelve years in Gates Planetarium at the Denver Museum of Natural History, White's never had any formal training in art. But he's also never had any training in his latest interest: the law. Armed with a recent court decision, he's currently campaigning for the right of artists to sell their works in public parks across Colorado.
"I'm not trying to brag," brags White, "but I'm probably having the biggest impact on the fine arts ever in the state of Colorado. You can call me the Johnny Appleseed of the civil rights of fine artists."
By now, though, officials at the Foothills Park and Recreation District likely have several other names for him.
For the past two months, White has been displaying and selling his art in Clement Park, at Wadsworth and Bowles in the Foothills district, every Friday, Saturday and Sunday from "about noon until it rains," he says. But weather isn't the only hazard White's encountered. He's also had to fight with Foothills officials--and teach their attorneys a thing or two in the process.
White says that when he approached Foothills representatives in early May and told them he was interested in selling his paintings in the park, they wanted to charge him a $40-per-day vendor's fee. That violated his First Amendment rights to free speech, White argued. After about a week of sometimes heated discussions, Foothills' manager of recreation referred White to the law firm of Collins and Cockrel, which represents Foothills and a number of other parks and special districts, including South Suburban.
White says he threatened to sue Foothills "for a minimum of $30 million" for violating his First Amendment rights by trying to charge him for the right to sell art on public property. He bolstered his threat with a case involving a group of New York artists who wanted New York City to overturn a law barring visual artists from exhibiting or selling their work in public places if they didn't have a general vendor's license.
A federal judge rejected the artists' claim that selling their work on city sidewalks was a form of expression protected by the First Amendment, but the U.S. Appeals Court for the Second Circuit overturned that ruling on October 10, 1996. Citing U.S. Supreme Court decisions, a panel of three federal judges held that First Amendment protection definitely extends to the visual arts.
"Visual artwork is as much an embodiment of the artist's expression as is a written text, and the two cannot always be readily distinguished," the judges wrote.
Furthermore, the appeals court ruled, the sale of materials protected by the First Amendment is also protected. The New York artists' "street marketing is in fact a part of the message of [their] art," the decision says. "Anyone, not just the wealthy, should be able to view it and buy it. Artists are part of the real world: They struggle to make a living and interact with their environments. The sale of art in public places conveys these messages."
White handed a copy of that decision, along with a fourteen-page letter laying out his argument, to Foothills' lawyers. "I'm sitting there educating their attorneys about this," he says.
Paul Rufien, one of the attorneys who handled White's complaint, acknowledges that his firm was unfamiliar with the New York case. "I will admit to being educated about the rights of artists to sell their art," Rufien says. "There was certainly an education process there. The sale of his artwork does carry a loftier First Amendment protection than the sale of a hotdog. I don't think before Mr. White's case we had ever undertaken to draw that distinction in our minds."
Several days after their meeting, the attorneys called White and told him he did indeed have a right to sell his art in the park. But there are limits, Rufien notes, and White sometimes goes out of bounds.
Legally, the district can designate certain areas for White to use so that he does not interfere with other park activities. And there's nothing to prohibit it from charging White and other artists a reasonable fee to use the park as an open-air gallery, Rufien says.
White contends that charging him any kind of fee would be illegal because it would constitute a form of licensing. In order to avoid a time- and money-consuming lawsuit, the district has tried to compromise by waiving any fees. But White still doesn't seem satisfied. "I think maybe he wants to be deemed right," Rufien says.
"From our perspective, Mr. White seems to want to be in conflict with Foothills, and there's really no conflict," adds Bob Easton, Foothills' executive director. "We recognized what he's indicated as his First Amendment rights, and we've accommodated him."
White says he wants the district not only to acknowledge the validity of the federal-case law, but to publicize it throughout the district. He wants Foothills to encourage other artists, particularly young artists, to exercise their First Amendment rights.
"There were about twenty high-school kids that surrounded me in the park the other night," says White. "This is a life-changing thing going on here. All these kids are visionaries. All these kids have messages."
White has a message, too: Until every park district in Colorado recognizes the right of artists not only to show, but also to sell their work on public property, he'll continue his campaign. It's certain to be a long one; other metro municipalities plead ignorance of the New York case law. Both Denver and Boulder, for example, have city ordinances that require vendors--artists included--to get permits before selling goods in public parks. And neither Boulder Parks Superintendent Doug Hawthorne nor Denver Assistant City Attorney Andy Weber has heard of artists claiming a First Amendment entitlement to peddle their works.
So far, say Foothills officials, White is the only artist demanding space in the park. If there's an influx of other artists wanting to show and sell their work, the district may have to establish guidelines, says Easton.
Ever helpful, White has drafted his own set of guidelines for art in the parks and submitted it to Foothills officials. For example, the federal case applies only to fine art--not crafts. If the parks department doesn't write this specification into its policies, White warns, Clement Park could be overrun by salespeople hawking doll clothes made in Taiwan. "I don't want to see our park turned into a flea market," he says.
That may be the one point upon which White and Foothills officials agree.
"They think I'm a jerk, but I'm being real nice," White says. "I'm keeping them out of federal court. They're just trying to ignore it and hoping it will go away, so I'm putting them on the hot seat.
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