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| This clipping is from Throttle's July 1982 issue. |
In 1982 the City of Richmond tweaked its City Code to crack down on the
posting of unauthorized notices on fixtures in the public way. With a
particular focus on the Fan District, policemen pulled handbills from utility poles
and charged the person(s) they held responsible for posting the flier, and/or whatever entities they determined would benefit from its message, with
violating the new statutes. So, in theory, a club owner and a band member could be busted for the same handbill.
On June 28 of that same year, David Stover, a 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. Stover’s misdemeanor conviction sent a 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. In the early-'80s Richmond’s live music
scene may have been the strongest it had been in decades. The
convictions made most clubs and bands suddenly afraid to depend on a what had been a reliable, even essential tool, to promote their shows.
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. In the last few years xerography had made the
cost of a short run of little posters much more affordable.
So, my instincts were to not accept a ban on that integral avenue of
promotion without putting up a fight of some sort. 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. Given such thinking, I decided to go on stapling Biograph fliers to preferred utility poles and let the chips fall as they may.
It wasn’t long before 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.
Promptly, I admitted to putting it up. He issued me a summons. It wasn't an unfriendly exchange.
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 what would be my case.
*
It seemed to me then that the crackdown, in part, had been spawned in a pool of resentment some
property owners in the Fan felt toward VCU’s growing presence. In that
time
the look associated with punk rock -- how the anti-establishment kids
dressed, as well as
their art -- was just as off-putting to some cultural conservatives. The same went for the sound of amplified contemporary music. In a larger sense, it was
all part of an all too familiar culture clash, warmed over from the late-'60s.
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.
Prompted by that civic association’s pressure, the City Hall suddenly proclaimed that outlawing handbills would help with the 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 fixtures in the public way, such as utility poles, as kiosks. I
found some useful precedents that backed up my thinking. Plus, I began
to study political art and outlaw art, in general, down through
history, with a fresh passion.
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.
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 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 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 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 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 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. So, Donato, who was a
wily artist if ever there 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 would be 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 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
Times-Dispatch.
‘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.
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 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.”
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. 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
Atomic Cafe.”
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) ...”
...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.
Asked by
assistant commonwealth’s attorney William B. Bray whether a bunch of
soup cans on the ground is art, Donato replied, “It depends on who
arranged them.”
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,
Millikin 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 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, brief stories and ads. But that’s another story for another day.
-- 30 --
