Art or litter? Judge rules handbills not in ‘public way’
by Frank Donnelly
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 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) ...”
Rea’s attorneys, 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 them.
“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 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.
“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.
Thursday, May 07, 2009
More on City's anti-show biz ways
Richmond's decades-long campaign to stifle show biz was documented in this article, which was printed in the Richmond News Leader on Nov. 6, 1982: