Permitting Art: Visual Arts and the First Amendment on the Streets of New York by Brian Soucek

Softcover, 144 pages, 5.9 (w) × 8.6 (h) inches
Cabinet Books, 2024
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If after buying this book, you wanted to then sell it on the streets of New York City, you could do so on almost any block without obtaining a vending license from the authorities. That is because words are protected by the First Amendment of the US Constitution, and freedom of speech is deemed more important than regulating pedestrian congestion, the city’s rationale for requiring vending licenses for almost every form of street commerce.

But until 1995, if you wanted to sell, say, a painting of the cover of this book, you would have been required to obtain a vending license. That was the year in which a group of New York artists who wanted to sell their work on the street filed a federal suit against the city claiming that the visual arts are also a form of speech—and therefore no less protected under the First Amendment than words. Their successful case resulted in an immediate change to the city’s vending laws, but it was followed by two others, including a 2004 suit filed by the city that attempted to narrow the scope of what the visual arts comprise. Is painting, for example, limited to work executed on a traditional surface? Or does the category extend to anything painted, even if it is on a utilitarian object—say, a T-shirt? If sold on the streets, should the shirt be considered an item of clothing that happens to have an artwork on it, or an artwork that happens to be on an unusual substrate?

The first volume in Cabinet’s “Art before the Law” series, Permitting Art presents the judges’ opinions in the three landmark federal cases, as well as an in-depth essay by legal scholar Brian Soucek that guides the reader through the complex arguments mobilized in these encounters between aesthetics and jurisprudence.

About the author
Brian Soucek is professor of law and Chancellor’s Fellow at the University of California, Davis, where he teaches constitutional law, civil procedure, and art law. Before receiving his JD from Yale Law School, Soucek completed a PhD in the philosophy of art at Columbia University and taught at the University of Chicago, where he was co-chair of the Society of Fellows in the Liberal Arts. Soucek’s interdisciplinary work spanning law and aesthetics was cited to the US Supreme Court in the 5Pointz aerosol art case and 303 Creative, the case that determined whether web designers have an expressive exemption from antidiscrimination laws. His articles include “Aesthetic Judgment in Law,” Alabama Law Review, vol. 69, no. 2 (2017); “The Constitutional Irrelevance of Art,” North Carolina Law Review, vol. 99, no. 3 (2021); “Censorship and Subsidy,” in A Companion to Arthur C. Danto (Wiley Blackwell, 2022); “Censorship and Selective Support for the Arts,” in The Oxford Handbook of Ethics and Art (Oxford University Press, 2023); and “Tax Law as Muse,” Cornell Law Review, vol. 110 (2025). He is a recent trustee of the American Society for Aesthetics and a fellow of the University of California’s National Center for Free Speech and Civic Engagement.