July 20, 2019
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Portland street artists say possible new restrictions would be unconstitutional

Seth Koenig | BDN
Seth Koenig | BDN
Artists and craftmakers sell their wares on Commercial Street in Portland in this 2011 Bangor Daily News file photo.

PORTLAND, Maine — Street artists waiting for the city to clarify where and how they can sell their wares have to wait a little longer.

The City Council’s Public Safety, Health and Human Services Committee has been debating possible changes to regulations on the vendors — including a proposed requirement that they register with the city clerk. The committee met last week, but took no action on the changes.

The revisions “are still being evaluated,” the committee’s chairman, Councilor Ed Suslovic, said April 12. It’s not clear how long they’ll continue to be discussed in committee or when they might be referred to the full council, he added.

The committee is next scheduled to meet May 14.

The registration proposal would require artists who perform or sell their own paintings, crafts or other art on sidewalks to register with City Hall at no cost, and to display their registrations while doing business.

Other proposed changes would ban the artists from working within 10 feet of a nonfood retail establishment, in a portion of Bell Buoy Park on Commercial Street, and on sidewalks narrower than 8 feet. As a result, much of the Old Port area would be out of bounds.

Current rules prohibit art vendors from taking up more than 12 square feet of space with their goods and displays, and require them to leave a 4-foot-wide open path along sidewalks.

The Maine chapter of the American Civil Liberties Union has already threatened legal action against the city if the proposed restrictions are implemented, on the grounds that they violate the First Amendment’s protection of free speech.

“The restrictions would effectively regulate artists out of downtown Portland,” Zachary Heiden, the ACLU legal director, said.

‘Not a level playing field’

Supporters of the regulations, including members the business community, claim the new rules are necessary to be fair to shops that risk losing customers to art vendors.

“It’s not a level playing field for businesses,” said Janis Beitzer, executive director of Portland’s Downtown District. “These vendors are paying nothing and setting up shop right in front of retailers’ windows.”

Nancy Lawrence, who runs Portmanteau, a maker of hand-crafted clothing and accessories at 3 Wharf St., said, “If the recommendations are not taken up, anybody will be able to set up in front … it could really cut down on business.

“If the sidewalks get blocked, my visibility gets blocked, my display area gets blocked, and it affects the value of my lease,” Lawrence said.

Beitzer pointed out that other merchants who use public space — including restaurants that offer sidewalk seating — pay the city for the privilege. The street artists also pose a public-safety risk, she said, noting “we’ve got narrow sidewalks where people are being forced to walk in the street.”

But risks like those may not be enough to warrant infringing Constitutional rights, Heiden said.

“Things like registration are not evils unto themselves … but any regulation of protected, First Amendment activity has to be tied to strong justification,” he said. “Hypothetical [risks] don’t cut it.”

What is art?

Portland has long banned the sale of merchandise on sidewalks and in public spaces. Original works of art, however, were never included in the ban. Then street vendors began stretching the definition of “art,” according to Beitzer.

The situation reached a crisis in the summer of 2011, when parts of downtown became “an unregulated flea market,” she said. At one point, Beitzer said, nearly 40 vendors were on the street, selling items ranging from Christmas wreaths and shoes to friendship bracelets that were “clearly purchased on the Internet.”

After a much-publicized crackdown on the vendors, the city formed a task force to address the problem. Last year, the group recommended that vendors be better educated about the city’s regulations, and also proposed new restrictions. The changes came before the public safety committee for vetting in January.

Registration is one of the most controversial suggestions.

“The goal of [the registration requirement] is to be sure everyone knows what the rules are,” Suslovic said. “We want voluntary compliance.

“The key challenge is how do you balance the First Amendment with public safety,” Suslovic said.

Lawrence, of Portmanteau, thinks street artists should welcome registration as a way of distinguishing themselves from vendors selling knock-off merchandise and other illegal goods.

“I would consider [registration] as a form of validation, which separates artists from the others,” she said.

Other views

Cities such as Boston and Seattle have adopted, and sometimes later revoked, regulations on street artists. In Cambridge, Mass., a city well known for its sidewalk art, street performers must obtain a $40 permit to do business. Artists selling goods must obtain the same type of permit obtained by other street vendors.

And while Portland debates registering street artists, towns including Freeport already require registration of another type of “street vendor” protected by the First Amendment — newspapers, such as The Forecaster, that distribute their products through sidewalk racks and kiosks.

On a recent night, two teenage guitarists performing along Exchange Street — one of the streets where artists would be banned in spots by the proposed 10-foot buffer zone — were distressed by the possible prohibition.

Cape Elizabeth High School students Ryan Allmendinger and Mackenzie Leighton were busking as a few pedestrians walked by.

“I think people should be able to display what they’ve made without any interference from the government,” Allmendinger said. “It seems like a clear freedom-of-speech issue.”

Leighton predicted that the new restrictions would dampen Portland’s lively street music scene. Quieting the music could threaten the city’s reputation as a burgeoning arts mecca, where performers, other artists and vendors, galleries and downtown visitors mix comfortably.

“[The registration requirement] seems like a hassle,” she said. “I think it would hinder people from coming out and performing in the first place.”

Even Lawrence said she’d like to see all of Portland’s artists accommodated.

“I have nothing but support for emerging talent,” she said. “We should be embracing all of it.”

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