Art and commerce

Licensing of First Amendment activities eyed for city parks

With his sax at his side, street performer Marcus Moore listens to a discussion of licensing at the city parks commission. Moore is also a Truckee Meadows Community College student.

With his sax at his side, street performer Marcus Moore listens to a discussion of licensing at the city parks commission. Moore is also a Truckee Meadows Community College student.

Photo By Dennis Myers

The Reno Recreation and Parks Commission last week approved an endorsement of proposed new ordinances governing sales and financial transactions associated with First Amendment activities in public places, but the endorsement was kind of tepid.

The purpose of the new ordinances is to get rid of old language in city ordinances that leaves the city in a weak position if it is sued for breaching First Amendment rights in public places.

The city’s Arts Commission has already endorsed the legal changes, and the Reno City Council is expected to vote on them next month.

Several people, led by activist Tom Levatter, were on hand to oppose the ordinances.

“I’m concerned that the city of Reno is looking to restrict First Amendment expression both in public parks and on sidewalks,” Levatter said before the meeting began. “Public parks and sidewalks are traditional public fora and there should be only a compelling need for the city to restrict our rights in those locations, and I don’t believe they have one. … They want to require artists, nonprofit organizations and First Amendment speakers who would like to use public parks or sidewalks to express their First Amendment rights to go to the licensing department, present identification, give their name and pay a $60 fee in order to continue expressing themselves.”

He said that what applies to artists will also apply to non-profit institutions and political groups and activists. Greenpeace activists in San Francisco, he said, have been arrested for selling stuffed whales.

“The Supreme Court has said that just because a speaker receives compensation, it makes him no less of a speaker,” Levatter argued.

While the court has indeed ruled that paid speech enjoys the same First Amendment protection as any other speech—something which presumably also applies to other First Amendment pursuits like painting—the court did not disallow or even address licensing issues.

It was not clear why the city attorney’s office is not pursing permitting language instead of licensing language in this field. Sales are currently banned from Reno parks but take place during special events under permits.

It was noted that the city Parks Commission has already recommended approval of the ordinances and someone asked what that body heard that convinced them. The only person present who heard the Parks Commission discussion was Levatter, and he described it as a case of the arts establishment being hostile to independents. “The Arts Commission has a vested interest in protecting the festival industry instead of all arts,” he said.

As if to underscore his words, on two walls of the room in which the parks meeting was being held in McKinley Park School were 18 posters from previous arts festivals, most of them for Artown.

There was a reference by one speaker to red umbrellas, but it was unclear what the meaning was. There is a Red Umbrellas outdoor art show in San Francisco, sex workers wield red umbrellas in protests in Las Vegas, and in Napa anti-abortionists picket Planned Parenthood while carrying red umbrellas, any of which could fit the circumstances at issue in the Reno ordinance.

Robert McLaughlin, who has just stepped down from the parks commission and was seated in the audience, stood and said he thinks the ordinances represent solutions to difficulties being experienced by large urban areas like New York, but are not appropriate for cities where procedures are less formal.

“We’re trying to create a solution to a problem that doesn’t exist,” he said, adding, “I suggest this whole thing be voted down, I think this whole thing just needs to go away until the red umbrellas take over Idlewild [Park].”

City Councilmember Jenny Brekhus, the parks commission liaison with the City Council, made comments along the same line.

It was, in fact, the court rulings cited by Levatter that created the inducement for new city ordinances in the first place. Deputy city attorney Creig Skau said under its current ordinances—which ban sales in parks altogether—the city is legally vulnerable in lawsuits. “It only takes one,” Skau said, saying that both Reno and Sparks have faced such lawsuits in the past. Reno officials, finding their legal position legally indefensible, quickly settled out of court for about $30,000, while Sparks chose to fight it at an ultimate cost of about $600,000.

Some of the critics of the changes argued that accepting donations for, say, music or handcrafts, should not be considered sales. But Skau said that would put the city in the position of sort out what are charges and what are donations, and that simply calling money a donation does not necessarily make it one—a position well known to casino workers and the Internal Revenue Service that taxes their tips.

Commissioner Franco Crivelli pointed out that under existing law, “Sales are not allowed in parks,” and that maybe the things should stay that way. But Skau said, “If we have an ordinance that says, ’No sales in parks,’ we are violating the First Amendment.” That would expose the city legally.

Skau said if the new ordinances are not adopted, that doesn’t mean street artists will not have to deal with city regulation, because there already are ordinances in place—and they ban sales altogether. What the new ordinances will do, he said, is strengthen the city’s hand in the event of a lawsuit because the new language is more defensible in light of court rulings than the existing language. There was considerable dialogue that indicated the purpose of the proposed ordinances was less enforcement than protecting the city in the event of such a lawsuit.

When Commissioner Gerry Taylor asked who was going to enforce the ordinances, Skau said in the past the city has simply relied on “self-enforcement.”

There was more indication of informal attitudes toward commercial activities in parks when Recreation and Parks director Julee Conway said that things like dog training, physical fitness classes and tennis lessons go on all the time in city parks, and the city can do little about them because there is no workforce to police it. She said such things usually come to the city’s attention mainly through complaints, as when regular users of tennis courts can’t get in because of classes, whereupon the city will take action. Otherwise, the system is, of necessity, pretty laissez-faire.

In the end, Commissioner Tom Stille made a motion that the commission “is in general agreement” with the proposed ordinance. He leaned hard on the word “general” in his inflection to indicate that the agreement is less than total and that commissioners have misgivings.

On another topic, the noticing for the meeting may have been flawed. During the meeting, the News & Review brought to the attention of the parks director the fact that two different printed agendas had been issued. One contained the licensing agenda item. The other did not. Conway said later that the correct agenda was the one posted in advance to the public.