*
On June 28 of that same year, David Stover, a professional photographer and part-time usher at the Biograph Theatre, admitted in court he had posted a promotional handbill on a utility pole. The General District Court judge, R.W. Duling, ordered him to pay a $25 fine.It should be noted that in the early-'80s Richmond’s live music scene was probably the liveliest it had been in decades.Stover’s misdemeanor conviction surely sent an obvious message to his band, The Prevaricators, that they needed to find another way of spreading the word about their gigs.
In the weeks before Stover’s court date others in local bands had been fined for committing the same crime. The convictions made most clubs and bands suddenly afraid to depend on a what had been a reliable, essential tool to promote their shows.
As the manager of the Biograph, I had also been using the same sort of handbills on a regular basis for 10 years to promote that repertory cinema’s fare, in particular the midnight shows. In the last few years advances in xerography had made the cost of a short run of little posters much more affordable.
My instincts were to not accept a ban on that traditional, integral avenue of promotion without putting up a fight. It felt to me like the City of Richmond was not only trampling on my freedom of speech rights, it was trying to undermine the Fan District's nightlife scene.
In other words, I suspected they were unhappy about the content of some handbills. Given such thinking, I decided to go on stapling Biograph fliers to preferred utility poles and just let the chips fall as they may.
It wasn’t long before one afternoon a uniformed policeman showed up at the theater with a flier for “The Atomic Café” in hand. That was the movie we were playing at that time. The cop told me he had removed it from a pole in the neighborhood.
When asked, I admitted to putting it up. He issued me a summons. It wasn't an unfriendly exchange.
It seemed to me then that the crackdown had been spawned in a pool of resentment some property owners in the Fan felt toward VCU’s growing presence. I supposed it was easy for them to figure that the university's art school was partly to blame for the band scene and much to blame for the posters trumpeting that scene.
Note: Due to procedural delays, it took over four months for my day in court to arrive. Which was fortunate, because I used that time window to assemble what would be my case -- both the argument and the evidence.
*
It should be remembered that in 1982 the look associated with punk rock -- how the anti-establishment kids dressed, as well as their art -- was grievously off-putting to some cultural conservatives. The same went for the sound of properly amplified contemporary rock 'n' roll music. Thus, in a larger sense, this episode was part of an all-too-familiar culture clash being warmed over from the 1960s.
Consequently, the leaders of the Fan District Association of that era were determined to rid the neighborhood of the handbills that promoted edgy happenings in their Fan District. Conveniently, City Hall proclaimed that outlawing handbills would help with the growing litter problem in the city.
All of which made me start reading about similar situations in other parts of the country. In particular, cases that involved using existing fixtures such as utility poles, as kiosks. I found some useful precedents that backed up my thinking. Plus, with a fresh passion I began to study political art and outlaw art, in general, down through history.
Scheming about how to present my argument in court filled my head for the next four months. First, I wanted the court to see an essential context -- our society tolerates all sorts of signage on utility poles, because the messages are considered useful and the practice works.
Then, I wanted to convince a judge that once you considered all the handbills in the neighborhood around VCU, as a whole, it could be seen as an information system. It was a system that some young people were relying on for useful information, just the same as others might rely on newspapers obtained from a box sitting on public sidewalk.
After all, what right did the newspaper company have to block any part of the public sidewalk with its box full of information, including a lot of advertising? What allowed for that?
One person might read the entertainment section in a local newspaper. Another person might look to the utility poles in their neighborhood, to read the posters touting live music shows or poetry readings. Some would trust the information found in a newspaper. Others might put more faith in the handbills posted on certain poles they walk past regularly.
Moreover, the only reason privately owned utility poles had ever been allowed to impose on public property, in the first place, was that electricity and telephone lines had been seen as serving the commonweal. So, why not use the bottom of the same poles as kiosks?
Somewhere along the line, I told my bosses it would cost them nothing in legal fees. A couple of my friends who were on the theater's softball team, who were also pretty good lawyers, would handle the defense.
To gather plenty of good examples of handbills to use as evidence, we had an art show/contest at the Biograph (see flier above). On October 5, some 450 fliers, posted on black foam core panels, were hung in the theater’s lobby. In all, there were probably 40 or 45 artists represented.
A group of friends acted as impromptu art expert judges to select the best five of the show. Naturally, there was a keg of beer on hand to grease the wheels of progress. Two of the handbill art show judges from that night also served as expert witnesses at the trial. They were: Gerald Donato and David Manning White.
Donato was an art professor at VCU; White was the retired head of the mass communications department at VCU. The best 100 of the handbills from the show were later taken to court as evidence.
One of Phil Trumbo’s Orthotones (later Orthotonics) handbills was named Best in Show. Most people who knew much about the handbill artists in the Fan probably would have said Trumbo was top dog, so it was a popular decision by the judges.
*
Thus, on November 5, 1982, I witnessed a fascinating scene in which an age-old question — what is art? — was hashed out in front of a patient judge, who seemed to thoroughly enjoy the parade of exhibits and witnesses the defense attorneys put before him. The room was packed with observers, which included plenty of gypsy musicians, film buffs and art students wearing paint-speckled dungarees.
Trumbo testified at the trial as a handbill expert, to explain how to make a handbill and why they were used by promoters of entertainment. He also described how the music and art associated with the bands and clubs were all part of the same milieu.
My defense attorneys attacked the wording of the city's statute I was charged with violating as “overreaching.” They asserted on my behalf that it was my right to post the handbill, plus the public had a right to see it. The prosecution stuck to its guns and called the handbill, “litter.”
The judge was reminded that history-wise, posters predate newspapers. Furthermore, we asserted that some of the cheaply printed posters, a natural byproduct of having a university with a burgeoning art school in the neighborhood, were worthwhile art.
At a crucial moment Donato was being grilled by the prosecutor. The Assistant Commonwealth’s Attorney, William B. Bray, asked the witness if the humble piece of paper in his hand, the offending handbill, could actually be “art.”
“Probably,” shrugged the prof. “Why not?”
The stubborn prosecutor grumbled, reasserting that it was no better than trash in the gutter. Having grown weary of the artsy, high-brow vernacular being slung around by the witnesses, the prosecutor tried one last time to make Donato look foolish.
As Warhol’s soup cans had just been mentioned the prosecutor asked something like, “If you were in an alley and happened upon a pile of debris spilled out from a tipped-over trashcan, could that display be art, too?”
“Well,” said the artist, pausing momentarily for effect, “that would depend on who tipped the can over.”
Donato’s punch line was perfectly delivered. The courtroom erupted into laughter. Even the judge had to fight off a smile.
The crestfallen prosecutor gave up; he had lost the case. Although I got a kick out of the crack, too, I’ve always thought the City’s mouthpiece missed an opportunity to hit the ball back across the net.
“Sir, let me get this right,” he might have said, “are you saying the difference between art and randomly-strewn garbage is simply a matter of whose hand touched it; that the actual appearance of the objects, taken as a whole, is not the true test? Would you have us believe that without credentials, such as yours, one is ill-equipped to determine the difference ordinary trash and fine art?”
A smarter lawyer might have exploited that angle. Still, the prosecutor’s premise/strategy that an expert witness could be compelled to rise up to brand a handbill for a movie, a green piece of paper with black ink on it, as “un-art” was absurd. After all, any town is full of bad art, mediocre art and good art. Name your poison.
Maybe the better question to have asked would have been about whether the art is pleasing to the eye, thought-provoking or useful. Then any viewer can be the expert witness. However, when it comes to great art, maybe it still depends on who tips over the can.
*
The next day the story about winning the handbill case was draped stylishly across the top of the front page of the Richmond Times-Dispatch. Here are excerpts of that article:
‘Atomic Café’ handbill case is still clouded
By Frank Green
Sat., Nov. 6, 1982
...Richmond District Court Judge Jose R. Davila Jr. dismissed a charge yesterday against Terry Rea, the manager of the Biograph Theater, who allegedly posted handbills advertising the movie “The Atomic Café” on some utility poles in the Fan in June…
…The case concerned the seemingly simple issue of the allegedly illegal posting of a handbill. But before it was over, the proceedings touched on topics that included free speech, soup cans, and nuclear energy, and invoked the names of such diverse personalities as Andy Warhol and the city‘s public safety director.
Rea’s attorneys, John G. Colan and Stuart R. Kaplan, argued the city’s ordinance was unconstitutional because it violated Rea’s right of freedom of speech…
…“The city, GRTC, VCU, churches, the Boys Club and all the candidates use the public’s utility poles to post their signs. They know as well as the general public that there is nothing pretty about a naked pole. Handbills pose no danger to anyone. Is free speech only for some?” Rea asked in a handbill he had printed up before yesterday’s trial.
Later that Saturday Richmond’s afternoon daily, the Richmond News Leader, carried a story about the trial. Here are excerpts of that article:
Art or litter? Judge rules handbills not in ‘public way’
by Frank Donnelly
Nov. 6, 1982
One man’s art may be another man’s litter, but the real question was whether it blocks the “public way.”
Terry Rea, manager of the Biograph Theatre in Richmond, was charged in June with obstructing a city sidewalk when he posted handbills on utility poles in the Fan District.
Rea’s attorneys, eliciting testimony on mass media and art from several professors at Virginia Commonwealth University, argued yesterday that the city law limited their client’s freedom of speech.
However, Richmond General District Judge Jose R. Davila, Jr., said the issue came down to whether the posters obstructed the public way, and he ruled that the commonwealth’s attorney’s office failed to prove they did.
Davila dismissed the charge against the manager of the theater but stopped short of finding the city law unconstitutional, which also had been requested by Rea’s attorney’s.
The city now must decide whether to find a better legal argument to defend the city law or to revise it, officials said. The law is used by the police to combat excessive advertising in the public way, which is defined as any place open to the public, such as a street or sidewalk.
“The poles were perfectly clean this morning,” Capt. Robert T. Millikin, Jr., said about the possible impact of the decision. “Between you and me, I don’t know what they’ll [sic] going to look like between now and tonight.”
For the last year, Fan District residents have complained to police about the unsightliness caused by posters on trees and utility poles, Millikin said...
Rea said he always has relied on handbills as an inexpensive but effective way to advertise movies at the theater, which specializes in the showing of avant-garde movies...
...David M. White, a former VCU professor of mass communication and author of 20 books on the media, said handbills are a unique form of communication. The theater could advertise in newspapers but the cost was prohibitive, he said.
Jerry Donato, an associate VCU professor of fine arts, said that posters in the Fan District contained both art and messages. “The Atomic Cafe” posters, which contained the slogan, “A hot spot in a Cold War,” criticized the use of nuclear power, he said...
...Before the trial, Rea had argued, “The handbill posted in the public way is a unique and vital form of communication. Production and distribution is direct, swift and cheap.”
That message was printed on a handbill.
*
Three years later, Richmond once again passed new laws forbidding unauthorized fliers on utility poles. Another crackdown ensued.
This time it spawned a reaction from several of the Fan District’s handbill artists, musicians and promoters -- activists who called themselves the Fan Handbill Association.
Eventually, this political issue prompted me to design a two-page, twice-a-week "magazine," SLANT, which was made to be stapled to utility poles. There were cartoons, blurbs/brief articles and ads. And, I wrote about the handbill controversy.
But that’s another story for another day.
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