Note: The clipping above is from Throttle magazine's July 1982 issue.
In 1982 the City of Richmond tweaked its City Code to crack down on the
posting of unauthorized messages on fixtures in the public way. With a
focus on the Fan District, policemen pulled handbills from utility poles
and charged who they held responsible for posting the handbill with
violating the new statutes.
On June 28 of that same year, David Stover, a photographer and part-time
usher at the Biograph Theatre, was ordered by a General District Court
judge, R.W. Duling, to pay a $25 fine. Stover’s misdemeanor conviction
stemmed from promoting a gig for his band, The Prevaricators. He
admitted to having stapled copies of a letter-sized promotional flier to
In the weeks before Stover’s court date others in bands had been fined
for committing the same crime. In the early-80s Richmond’s live music
scene was probably the strongest it had been in decades, but the
crackdown suddenly had most clubs and bands afraid to rely on handbill
campaigns to promote their shows. As fliers were the main promotional
tool for most of the Rock 'n' Roll shows the crackdown threatened to
throw a wet blanket over the aforementioned live music scene.
As the manager of the Biograph, I had 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. Xerography had made the
cost of a short run of little posters much more affordable. So, I
wasn’t about to give up such a reliable and inexpensive method of
promotion without a fight.
It felt to me like the City of Richmond was not only trampling on my
freedom of speech rights, but it was trying to destroy the nightlife
scene the Biograph was part of in the Fan District. The local
authorities appeared to be trying to scrub away what some in Richmond
had come to see as an undesirable element -- much of which was
affiliated with VCU.
Given those thoughts, I decided to go on stapling fliers to utility poles, more or less to invite a bust.
It wasn’t long before a polite cop showed up at the Biograph with a
flier for the movie we were playing, “The Atomic Café.” He said he had
removed it from a pole in the neighborhood. I admitted to putting it up
and was issued a summons. 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 build my case.
In a larger sense, it was another battle in a conflict we have come to
know as the Culture War, which has been dragging on since the
late-1960s. In part, the crackdown was blowback from the resentment some
property owners in the Fan felt toward VCU’s growing presence. In 1982
the look associated with Punk Rock -- how the kids dressed, as well as
their art -- was just as off-putting to some conservative old folks and
Yuppies as the amplified sound of the music, itself.
Consequently, the Fan District Association of that era was dead set
against irreverent handbills that promoted edgy happenings in the Fan.
Prompted by that civic association’s pressure, the City of Richmond said
the whole mess was mostly about trash -- fliers stapled to poles were
officially branded as litter.
So, I started reading about similar situations in other places, cases
that involved using fixtures in the public way, such as utility poles. I
found some useful precedents that backed up my thinking. Plus, I began
to read about and look at political art and outlaw art, down through
history, more than ever.
The study of laws and decisions about free speech and the use of public
property became my obsession. Scheming about how to present the argument
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
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 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 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
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 at the Biograph (see flier above). On October 5, some
450 flyers, posted on black foam core panels, were hung in the theater’s
lobby. In all, there were probably three or four dozen different
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 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 scene that
flowed out of the neighborhood's university.
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 called the handbill, “litter.”
The judge was reminded that history-wise, handbills 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 by the art expert, 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 could well 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. So, Donato, who was a
wily artist if there ever was one, probably would have one-upped the
buttoned-down lawyer, no matter what.
Perhaps the question should not have been — how can you tell fake art
from real art? Any town is full of bad art, mediocre art and good art.
Name your poison.
The better question to ask is whether the art is pleasing to the eye,
thought-provoking or useful. Then you become the expert witness.
However, when it comes to great art, it still depends on who tips the can over.
The next day the story about winning the handbill case was draped
stylishly across the top of the front page of the Richmond
‘Atomic Café’ handbill case is still clouded
By Frank Green
Sat., Nov. 6, 1982
Though the case has ended, the fallout from “The Atomic Café” may not be over.
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…
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.
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 this story:
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.”
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.
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.
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.
the charge against the manager of the theater but stopped short of
finding the city law unconstitutional, which also had been requested by
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 the
unsightliness caused by posters on trees and utility poles, Millikin
said. The police asked businesses in June to stop posting the handbills
and most businesses did so, he 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. Two weeks later, he was charged with a misdemeanor
after posting advertisements for the anti-nuclear power movie, “The
The manager was
charged under a law that states: “It shall be unlawful for any persons
to obstruct or use a public way for advertising, promotional or
solicitation purposes or for any purpose connected therewith ... by
placing attacking [sic] or maintaining a sign on or to a fixture (such
as a utility pole) ...”
Stuart R. Kaplan and John G. Colan, contended in court that the posters
did not obstruct the public way, and the arresting officer agreed with
“It was nothing anyone would trip over,” Patrolman James P. Gilliam said about the posters.
The attorneys also argued that the city law abridged Rea’s freedom of speech by denying him one possible way to advertise.
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
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.
assistant commonwealth’s attorney William B. Bray whether a bunch of
soup cans on the ground is art, Donato replied, “It depends on who
The courtroom, which held about 30 artists and supporters of the theater, erupted into laughter.
Bray said purpose
of the statute was to prevent littering but agreed that another reason
was to prevent obstruction of the public way. The posting of handbills
could block the public way by falling off of a utility pole and causing
pedestrians to slip, he said. The posting of the advertisements caused a
hardship for the police, which sometimes had to take down the posters,
“This ties my men up,” he said. “We have more important things to do, God knows.”
Rea and his
attorneys said they were happy with the decision although they wished
Davila had gone farther and ruled the city law unconstitutional.
“I’m glad there
are no criminal charges against me,” said Rea, who will continue to post
the handbills. “But I wish the judge had gone further and ordered the
statute to be unconstitutional. I don’t whether I’m safe.”
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.
In 1985, 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 issue prompted me to design a two-page, twice-a-week
magazine, SLANT, made to be stapled to utility poles. There were
cartoons, stories and ads. But that’s another story for another day.