October 6, 2009
THIS DOCUMENT WAS SUBMITTED FOR THE AGENDA OF THE VENICE TASK FORCE MEETING SCHEDULED FOR WED. OCT.7 @ 9:30AM ~ JAMES BEACH RESTAURANT ON N. VENICE BLVD. (WEST OF PACIFIC AVE.)
ALL THOSE CONCERNED ARE ENCOURAGED TO ATTEND
~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~
Changing the Regulation of Commerce in the
Free Speech Zone on Venice Beach Boardwalk
The battle for Free Speech on Venice Beach has been waged, on and off, since 1991, when a lawsuit, Alliance for Survival v. City of Los Angeles, claiming violations of 1st Amendment rights, was filed by the ACLU on behalf of Jerry Rubin, SHAPE and The Benefit Network. This lawsuit successfully established 1st Amendment protected vending for nonprofits, churches and politicos in what came to be known as the “Free Speech Zone” (FSZ) on the west side of Venice boardwalk. Following this, in 1997, Perry v. LAPD, US 9th Cir Appeals won 1st Amendment protection for street artist Harry Perry, and others, to sell their CDs, banners, T-shirts and buttons in the FSZ.
From 1995 to 2005, a span of ten years, the conditions in the FSZ deteriorated. Many ‘vendors’ appeared with false documents claiming affiliation to churches and other nonprofit entities; others claimed religious ideology by placing crosses and religious symbols on pieces of cheap, mass-produced jewelry (actions condoned by LAPD, Rec. & Parks, and the City Attorney). As a result, illegal, unprotected commercial vending proliferated in the guise of 1st Amendment activities, leading to ruthless competition for space and location. Many of the original Free Speech activities such as those operated by nonprofit organizations, churches and political activists were squeezed out in a hostile takeover by (ruthless) commercial vendors looking for a profit.
The City of Los Angeles’ response to the ensuing ‘space war’ was to impose a permit/lottery scheme into LAMC 42.15, in 2005, in an attempt to control the situation. As a result of offensive enforcement procedures and blatant 1st Amendment violations executed by LAPD officers, four lawsuits were filed against the City from 2005 to 2007. The ultimate cost of which now approaches $1 million in damages and attorneys’ fees paid out by the City. A new lawsuit has just been filed. As of the date of this document, illegal, unprotected commercial vending continues to proliferate, unabated, on Venice boardwalk, exacerbated by the City’s lack of enforcement of the current LAMC 42.15 ordinance. Because the current permit/lottery system results in the daily violation of citizens’ First Amendment protected rights to free speech and peaceable assembly, it is “repugnant to the constitution and is void.” (Marshall). The following proposal has been created by a group of concerned citizens, the Venice Beach Boardwalk Coalition (VBBC) whose purpose is to restore and preserve First Amendment standards in the Free Speech Zone.
To legally remove vendors selling merchandise that is not protected by the First Amendment, from space reserved for constitutionally protected free expression, in the Free Speech Zone (FSZ) on Venice Beach Boardwalk and to remove the permit/lottery system and designated space allocations*, returning to the conditions of the original LAMC 42.15 code. This to be achieved by constructing clear, concise and easily enforceable laws regarding what constitutes First Amendment protected vending on the Boardwalk. (* Since at least sixty percent (60%) of the current vendors on the Boardwalk engage in blatant unprotected commercial vending, with the number being potentially more than eighty percent (80%), it is expected that designated space allocation will be unnecessary. It is further expected that with the removal of commercial vendors, who tend to be aggressive in space occupation, the level of conflict on the Boardwalk will be greatly abated.)
(1) Prior Restraint
(a) A button fabricator, a vendor (whose activity is expressly protected by the First Amendment and, explicitly, in Ordinance LAMC 42.15), on three occasions has failed to win a lottery space to freely express in the Free Speech Zone on Venice Beach Boardwalk. Countless other documented instances exist wherein free expressionists have, similarly, been deprived of the space to exercise their rights, by illegal vendors.
(b) Expression has the same protection as speech. Pursuant to Mastrovincenzo v. City of New York, 435 F.3d 78 (2d Cir. 2006), and People v. Foote, 110 Cal. Rptr. 2d 260 (2001) the following are considered First Amendment protected activities:
(i) Any individual or organization vending newspapers, leaflets, pamphlets, bumper stickers or buttons;
(ii) Any individual or organization that vends the following items, which have been created, written or composed by the vendor: books, cassette tapes, compact discs, digital video discs, paintings, photographs, sculptures or any other item that is inherently communicative and has nominal utility apart from its communication;
(iii) Performances by performing artists and musicians.
(c) A permitting requirement is a prior restraint on speech and therefore bears a “‘heavy presumption’ ”against its constitutionality. See Forsyth County v. Nationalist Movement, 505 U.S. 123, 130 (1992) (quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963)
(d) A public park [is] the traditional public forum, with regard to which “the government bears and extraordinarily heavy burden” when it seeks to regulate free speech because parks have “time out of mind” been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.
(2) Illegal Vending
Free expression must be protected as stipulated in the First Amendment to the U.S. Constitution and, because it is in the substantial interest of the City of Los Angeles to eliminate illegal vending in order to protect free expression, the city must be aggressive in the enforcement of its own rules and regulations. It is a shame that the ‘donation optional’ clause is too dangerous to enforce so instead of that, enforce illegal vending identically in I-zones and P-zones.
Displaying other peoples work
Regarding art/photography, like performance art, its expression is in the making of it. Free expression is limited to the person creating the art. It is reasonable to believe that the art displayed is created by the person present. Any one displaying objects of someone else’s making is guilty of fraud. (Sub-section 380(1) and (2) of the Criminal Code) and will be prosecuted to the full extent of the law (at least be banned from the park). Suspected illegal vending merchandise:
• Goods with limited variation and/or multiple replicates of same;
• Goods that are not being made on site or whose production the vendor cannot demonstrate upon request;
• Goods that are made by someone other than the individual present;
• Goods who’s assemblage has no uniquely made element;
• Goods without a consistent entwined message;
• Goods without collateral literature, signs or art supporting the entwined massage.
• Goods not adhering to the proscribed relationship between commercial speech and pure speech: a transaction is not purely commercial when it is “not primarily concerned with providing information about the characteristics and costs of goods and services.”
(3) Appeal process
To enforce the First Amendment is difficult for a law officer; and for a park attendant it has proven to be impossible. The de facto policy of the Department of Recreation and Parks is that the free speech zone is a free swap meet. Just bring all your merchandise that you want to illegally vend and we will help you craft a message so you can circumvent the system.
Establishment of a civil/non-criminal appeals process would afford an avenue to resolve potential conflicts regarding the First Amendment nature of goods and services being offered. The appeals panel would advisably include persons capable of determining the commercial nature of the goods in question and/or whether fraud has been committed. Examples of current blatant commercial vending include, but are not limited to, goods obviously mass produced (generally by machine, but some look like cottage industry), goods obviously prepackaged (shrink-wrapped or plastic wrapped, for example), goods with UPC stickers on them, goods in boxes clearly marked “made in China,” clothing with labels “made in Cambodia,” or similar identifying characteristics. The remaining less obvious cases would be referred to the panel that would have the authority to take the required steps to establish or disprove authenticity. Thus, merchants, artists and pure “speeches” would be included as members of the panel. (4)
• It is the duty of the government to support and protect the First Amendment.
• The legislative branch (not the judiciary branch) breaches its duty when it does not construct guidelines explicit enough to effectively enforce the laws, to extricate illegal vending, and put in place a system that is shown to encourage graft and corruption.
• Illegal vending, in the free speech zone, together with the artificial limitation of space, through designated allocation, causes the exclusion of persons who are engaged in valid constitutionally protected speech.
• Damages are rights being deprived.
Venice Beach Boardwalk Coalition. VBBC