Vindicating Free Speech in the Big Apple

Winter 2004

Vindicating Free Speech in the Big Apple

HAN Member Defends Filmmaker’s First Amendment Rights from Overzealous NYC Cops

By Robin Brooks-Rigolosi

My client John wasn’t a starving artist—at least, not until his recent arrest. Now he’s a defendant in New York County Criminal Court, struggling to earn an honest living until a judge vindicates his constitutional right to free speech.

John is a filmmaker. He spends years thinking about his message. He spends countless hours alone crafting his screenplays. He convinces people to perform his works. He directs them. He films them. He toils over the films, fine-tuning his message through the editing process.

John was unlike so many would-be artists relegated to mindless day jobs to survive. He discovered New Yorkers were intrigued by his work and impressed with his belief that filmmaking should be brought directly to the masses, so much so that passersby would buy DVD copies of John’s films. He would pick a street corner, take out his DVD player and show his films. People stopped. People asked questions. People paid him for his DVDs. It was a modest living, but John was earning a living as an artist, nonetheless.

Unfortunately, John’s success was short lived.

The morning of September 9, 2003, police officers approached John, asked him a few questions and then debated among themselves whether what he was doing was an actual crime. John explained how frustrating that day was for him: “One decided he was erring on the side of caution by handcuffing me, confiscating my work and arresting me. I was shocked and humiliated. Plus, I wasn’t released from the precinct until nine hours later.”

The officers took 30 of John’s DVDs and his DVD player. They never read him his Miranda rights, and he only began to understand the charges against him once they handed him a ticket for vending without a license. Since then, New York’s bleak economic condition has made finding alternative employment extremely difficult. And since John can’t sell his DVDs until he’s vindicated, he can’t earn enough money to make more copies of his films to sell in non-public spaces.

John didn’t want to flout the law. In fact, John researched the rules. He learned that it takes years on a waiting list—sometimes as long as seven—to secure one of only 853 possible vendors licenses. Complicating matters, the office in charge of those permits told him only vendors are eligible for them—not artists selling their own works.

Happily, New York lawmakers deferred to the First Amendment and specifically carved out an exemption for people selling written matter. Later, the 2nd U.S. Circuit Court of Appeals weighed in after officers arrested or harassed artists. In Bery v. City of New York, the Court consolidated generations of U.S. Supreme Court rulings, holding that when it comes to First Amendment protections, the Constitution protects the communication of ideas, not the medium through which those ideas are communicated. Moreover, New York County Criminal Court has already followed Bery. Even the actual statute is on his side: John’s movies are inextricably linked to written matter, the screenplays, in which they’re created.

Normally, I don’t practice law. I passed the New York Bar exam and chose to follow my heart and open my own business. However, when the Institute for Justice’s Senior Attorney Dana Berliner approached me, the merits of John’s case compelled me take on the case pro bono.

The facts are on my client’s side. The law is on my client’s side. Even the assistant district attorney said that he was inclined to agree with my position. (I saved that voicemail and still listen to it.) Of course, the ADA has also told me that while he believes my client is an artist, he’s still going to prosecute.

Unfortunately, John’s day in court won’t come until February. When I asked John why his friends won’t challenge similar charges, he explained that most artists feel disenfranchised, and a ticket for vending without a license is just further proof. “Most of us won’t fight,” he said. “Most of us find it easier to remain seated. A real artist cannot. They have to sing and paint and explore, most often without any tangible results and plenty of self-doubt. What I was engaged in was real to me. It mattered. It mattered even more because it was working.”

This has been a long and tiring process for John, and for me. Thankfully, I don’t have to brave my first case alone; IJ has held my hand as I navigate my way through the criminal legal system. Dana Berliner has provided research and guidance that have saved me untold hours of work. IJ Vice President for Communications John Kramer has helped me strategize a media campaign so that we’ll win our case in the court of public opinion before I defend John in criminal court.

Many people have come together to defend John’s First Amendment rights for one simple reason: because it matters for John, it matters to all of us.

When she’s not litigating pro bono, HAN member Robin Brooks-Rigolosi (LSC 99) runs a commercial real estate business in New York City.

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