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ajBookchin
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Posted: Tue May 6th, 2008 01:53 pm |
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flyrep -
Reminds me of something a coworker had said to me about a book he was reading related to the founding fathers and the Constitution...
While they recognized the need for freedom of religious choice, they recognized that the Constitution could not stand from (without) religion.
Apparently, the founders knew that the government they created would falter if the citizens were not morally grounded.
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flyrep
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Posted: Tue May 6th, 2008 01:10 am |
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Ajbookchin,
It is difficult to dispute matters of the Constitution with people who have
no principles. We have enough citizens and politicians who fit that description,
sad to say.
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Mike L
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Posted: Sun Apr 27th, 2008 11:38 pm |
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abookchin
Right on! You hit the nail on the head exactly. And I could certainly say the same of my enlistment and oath. Of course if you don't learn something over forty+ years there is a big problem. I will be the first to admit that I also need to study up on the constitution and not just the parts I feel are being trashed by the government and that concern me personally. Of course it was all written for a purpose and if not for each individual, for all citizens collectively. we don't even want to get started on what the executive branch has done this administration.
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ajBookchin
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Posted: Sun Apr 27th, 2008 09:36 pm |
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Mike L wrote:
As for the councilmembers and mayor, I wonder why is it people are so willing to pledge to uphold the constitution yet they haven't (in most instances) got a clue what the difference between the First & second or third amendment is.
Unfortunately, I do not think most individuals are truly comprehending the oath they are taking.
At the time I enlisted in the Navy, I did not recognize the true meaning and gravity of the oath of enlistment; that I was not pledging an oath to defend the United States of America, the government of America, or the citizens of America, but rather I was pledging to "support and defend the Constitution of the United States against all enemies, foreign and domestic".
It is frightening that today, most of the Constitution's enemies - whether through sins of commission or omission - are of the domestic nature.
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Mike L
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Posted: Sun Apr 27th, 2008 05:23 pm |
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Say it isn't true
Thanks, and yes, it seems like there is one in every crowd. It is beyond me when people fail to show respect for other rights, even whan they disagree with them, how the expect anyone to respect theirs or take them seriously
One thing I have learned from my experience with this issue is that civil rights are a funny thing. As so long as it is not your personal civil rights that are being tramped upon most people are content to sit on the sideline and wonder what the big deal is all about, but as soon as theirs personally get stepped on they squeal like a stuck pig. So yes, I believe Steve has the right attitude and that is exactly what I meant to say at council about Shannon's recall effort, though with my nervousness I did a poor job of relating. Even though I don't fully agree with her, I do fully support her right to do so.
As for the councilmembers and mayor, I wonder why is it people are so willing to pledge to uphold the constitution yet they haven't (in most instances) got a clue what the difference between the First & second or third amendment is. The same with police officers, THey are given all kinds of training in field procedures, but how many are sent to class on violations of under color of law and the fact that they can be personally held financially liable.
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SayItIsntTrue
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Posted: Sun Apr 27th, 2008 12:09 am |
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Mike,
Glad to see you posting. Please contenue as some of us just can't make it to all the meetings.
I did get to see the last one meeting. People like to cry and then tell people to shut up durning the call to the public. I guess there is no reason to be shocked. Someone needs to be put in their place. I liked what Steve Flynn said about supporting everyone rights all the time as long as they stand up for their own. I have to start getting to the meetings again.
The recall efforts aren't making the council look bad these days, they themselfs are doing a good job of making them look bad.
Do they think only a group of people have rights some of the time? I have followed much of White was doing and for the most point I understand the issues he speaks of. Too bad our city leaders that gets the bucks doesnt get it.
Last edited on Sun Apr 27th, 2008 12:13 am by SayItIsntTrue
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Mike L
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Posted: Thu Apr 24th, 2008 08:36 pm |
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Actually I never had the pleasure of meeting her until the last council meeting. Speaking of facts, I have presented many case laws and USC codes. What have you presented other than your wife is in business and has to have a business license and collect TPT. Actually I admire anyone who is in business, I know from experience that it ain't all it is cracked up to be.
I would like t further explore the internet issue though. If one stops and gives it some thought, every business that is selling it's product/merchandise via the internet reaches into our homes and is thus doing business in AJ the moment one of us puchases from them. Are we going to require basically the whole world of commerce to have a AJ business license? Are we just going to require the ones with an AJ address doing business on the internet to have a license? What if their product never sells to anyone in AJ? What if they take their laptop, drive out of the city limits and conduct their business? Do you pay sales tax when you buy on the internet? Some major businesses such as Costco I have found, do require you to pay tax, but for the most part most don't. Especially if they are based out of state. So consequently, I have found it a great place to make major purcahses when possible.
So it seems like a whole can of worms to open up to me. Maybe DOR will buck the feds as they are doing with the artists. But right now the requlation seems pretty nil.
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mike85220
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Posted: Thu Apr 24th, 2008 08:15 pm |
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You must be taking lessons from Flynn, when confronted by facts ATTACK!!
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Mike L
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Posted: Thu Apr 24th, 2008 07:48 pm |
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mike 85220
does your wife create what she sells? if she does, does it have a self-expressive, political, religous, philosophical or ideological message?
That is the criteria for art = free speech. My opinion, your opinion, Joel Sterns opinion no longer matters. That is the opinion of all fifteen justices of the Ninth circuit court and okayed as law by the Supreme court. Their opinion is what matters!! If you don't like their opinion, you have two options, one is to work to get it changed, or two, move to China where the govt. controls everything, free speech isn't recognized so your wife would be on a level playing field.
What you and so many can't seem to wrap you head around is that Fine art is defined as a form of free speech protected by the First amendment. Free Speech is not commerce!!!
I was a building contractor for several years. and I don't have any trouble grasping the concept. Of course I was fortunate enough to be in a small community where the contractors would send work to each other, instead of trying to get it all for ourselves.
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mike85220
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Posted: Thu Apr 24th, 2008 06:46 pm |
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Mike L wrote:
"Guess I overlooked about selling on the internet.....Watch out or you will have another blogger with the same name as I trying to say you are in business and need to be licensed. I suspect they would even report you to city hall!"
My wife has a business and has to pay for licenses, sales tax and insurance. Why should she have to compete with someone that doesn't have to pay these fees? If we start on an even playing field we both have a chance of making money.
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Mike L
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Posted: Thu Apr 24th, 2008 04:12 pm |
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The definition you want is fairly easy. The work must be by the original artist and sold by the original artist. Your music and sales of the CD's are fully protected by this ruling. You can record them in your garage or in a full studio, makes no difference. However should you be fortunate enough to sell to a recording studio and they market the music then the protection is lost. The same with my Photos. I can sell multiple copies of the same one, so long as I originated it and am personally sell it. If I should sell it to say "stock photo" or Az Hwys. (I wish ) then thier reproduction and sales are no longer protected. Same thing with the press, while they tout free speech, they are actually a business selling advertising and newspapers with possibly a few editorials.
I agree with you about the taxation of food and some of our basics of life. Did you know the cable TV operators are free from sales tax in AJ? I can understand giving tax incentives to get businesses in town, but there should be time frames on them.
Yes, we should have round table discussions, too much goes on behind the scenes and we need to have more transparency. Our city council members should be required to watch a Tempe city council meeting where there is actually dialouge between the citizens and the mayor.
As to Fine art and what constitutes it, ( I know you did not bring this up) I have a brother-in-law who makes fine furniture. He does everything from cut down the tree to milling and cutting and shaping. He has a chair sitting on display in the Smithsonian. Now, is that art? Is it not fine art because it is utilitarian? I am afraid the justices have not done a sufficient job in answering that question and certainly sypathize with some of the artisan craftsmen who are artists in their own right. Like Linda Hilton questiioned in the news article, is it less art because it hangs from your neck, than if it hangs from the wall? The only way to get around that for now is to Frame it and put it behind glass! Then by definition it is fine art. If the purchaser decides to remove it and wear it then that is their problem.
Guess I overlooked about selling on the internet.....Watch out or you will have another blogger with the same name as I trying to say you are in business and need to be licensed. I suspect they would even report you to city hall!
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ajBookchin
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Posted: Thu Apr 24th, 2008 02:14 pm |
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Mike L. – Thank you for the additional information. Unfortunately, it sounds as though the problems Mr. Imbeault and yourself were facing with respect to obtaining a business license are not atypical – there are other threads on this site addressing the unfriendly attitude of our city hall.
I am curious, do you know of a definition to determine when speech becomes commercial??? Consider music… If I record a song in my garage and sell a few copies on the internet, I expect that my speech is not commercial. But at what point do I become commercial??? U2 could argue that they are expressing their free speech, yet they are clearly commercial.
So… how does commercial art differ from non-commercial art???
As for non-profits… I actually disagree with non-profits being exempt from sales taxes – every business should be equally taxed – any exemptions should be considered from the perspective of the consumer… on what products should the consumer (citizens) not be required to pay a sales tax??? For example, sales tax on unprepared food items is excessively regressive and should be eliminated.
Some of the actions you describe taken against Mr. Imbeault were inappropriate and unprofessional.
Our government process should allow “roundtable” opportunities for citizens to have a true dialog with government, unlike Call to the Public; maybe we could solve some of our community’s problems if we could sit down and discuss the issues.
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Mike L
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Posted: Thu Apr 24th, 2008 06:05 am |
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abookchin,
Thank you for educating yourself and not just spouting off as so many of the bloggers do. Your interpretation of the ruling was right on ….In one respect. However, what you are not recognizing is that the ruling also specifically stated that Mr. White’s paintings were not commercial speech. So, if it is not commercial then it is not commerce and you can’t regulate it. It is simply what it is free speech. No more of a commercial transaction than you and I debating the issue on this forum.
Also, have you read Perry v. LAPD? It involves the case of a street musician who sued LAPD because the Non- profit groups were exempt from licensing because they were expressing a message.
There is no justification for allowing those with membership in a nonprofit organization to sell items and solicit donations, while disallowing those with no nonprofit membership from the same activities. The regulation, like those in Schaumberg, Carey, and Discovery Network, is not narrowly tailored enough to pass muster.
This is a long case and I am not going to paste in more of it but I am sure you get the gist, and are capable of looking it up.
As to your first question on how the city of AJ has infringed on Artist rights, let me give you a little history.
I have to admit my goals and intent are not as lofty as Ernest Imbeault’s and Steve white’s. Ernie is a true believer in that the arts should be free for everyone. From the youngest to the elderly. Free from government interference and free from jury review. His view is that artists should be as free to use the city parks as the tennis players and softball players. (In fact Nevada recently Passed Assembly bill 351-Mortenson, which did just that. It opened up all the parks in the state and specified that artists be given a place to display and sell their works of art within each park.) He wants to give art back to the people. Steve on the other hand, while believing in the same thing as Ernie, sees himself more as an educator, trying to get across to artists and local governments what their rights are. I, personally just want to believe that the four years I spent serving my country (one in Vietnam) count for something. I don’t want my rights, your rights or any Americans rights eroded or infringed upon by government.
When Ernie first moved here he went down to city hall to apply for a business license. He was rudely told that the city of AJ did not allow what he did here. (now they want to license him..Or maybe not, they can’t seem to make up their mind and keep flip-flopping) Since that time he has been threatened with imprisonment by the city clerk and tax collector who, uninvited, barged into a zoning meeting and made the threats in the presence of all the members, the city attorney and no less while Steve’s recorder was running. (that kinda put the city attorney on SYA mode every since). Ernie has had his signs stolen and thrown in the dumpster by the city code enforcer, his art work was called “shit” by the same employee who was harassing him and telling he couldn’t set up. He and Steve have been banned from the city clerks office in an attempt to censor them. The city seems to be between the proverbial rock and hard place . The city attorney says the artists can set up and display and now he says they can sell, but refuses to put in writing if there will be consequences if they do.
The city attorney at one time threatened in a letter to imprison or fine Steve if he continued to set up and sell. (notice he hasn’t set up lately?)
One of the latest infringements comes from the City clerk’s office. A letter was sent out to the Owners of Los Vaqueros Bar and also to the owners of the Golden West Restaurant threatening them with fines of $2,500 per day and possible imprisonment if they continued to allow “those Illegal vendors to set up there” Ernie and I and other artists were invited to set up on the property to display and sell our constitutionally protected self-expressive work. It is our belief that the letter was an instrument of intimidation used by the city to force the owners into believing that by allowing us to set up, that they were violating the law. It worked as intended! The fact that this intern sent this letter under color of law, with the knowledge of the city clerk and the city attorney, puts not only the intern,but the city the council, the mayor and any and all involved and were aware of the letter in jeopardy. (if they were not aware, they sure are now and have done nothing to rectify or clarify it.)
Title 18, U.S.C., Section 242
Deprivation of Rights Under Color of Law
This statute makes it a crime for any person acting under color of law, statute, ordinance, regulation, or custom to willfully deprive or cause to be deprived from any person those rights, privileges, or immunities secured or protected by the Constitution and laws of the U.S.
This law further prohibits a person acting under color of law, statute, ordinance, regulation or custom to willfully subject or cause to be subjected any person to different punishments, pains, or penalties, than those prescribed for punishment of citizens on account of such person being an alien or by reason of his/her color or race.
Acts under "color of any law" include acts not only done by federal, state, or local officials within the bounds or limits of their lawful authority, but also acts done without and beyond the bounds of their lawful authority; provided that, in order for unlawful acts of any official to be done under "color of any law," the unlawful acts must be done while such official is purporting or pretending to act in the performance of his/her official duties. This definition includes, in addition to law enforcement officials, individuals such as Mayors, Council persons, Judges, Nursing Home Proprietors, Security Guards, etc., persons who are bound by laws, statutes ordinances, or customs.
Punishment varies from a fine or imprisonment of up to one year, or both, and if bodily injury results or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire shall be fined or imprisoned up to ten years or both, and if death results, or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death
Also under Nelson v. Streeter, the intern and all involved are personally liable for monetary suit.
Now that that all councilmembers, the mayor, city attorney etc are aware of it, under
Title 18, U.S.C., Section 241
Conspiracy Against Rights
This statute makes it unlawful for two or more persons to conspire to injure, oppress, threaten, or intimidate any person of any state, territory or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or the laws of the United States, (or because of his/her having exercised the same).
It further makes it unlawful for two or more persons to go in disguise on the highway or on the premises of another with the intent to prevent or hinder his/her free exercise or enjoyment of any rights so secured.
Punishment varies from a fine or imprisonment of up to ten years, or both; and if death results, or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title or imprisoned for any term of years, or for life, or may be sentenced to death.
And it goes on!!!!
We could go on debating law cases, but the only answer will probably lie with another law suit. If you remember Steve promised the city would be sued at a council meeting. These things take a little time to put together properly if you expect to win, so I expect we may be getting the answer in the months to come.
Ernie and I certainly have grounds for a suit, but that is not what we want and we hope not to have to resort to it to get the city to wake up. If they don’t, we will fight back in whatever way we have to. If and when the law suits start landing on the city attorneys desk, watch the finger pointing and I told you so’s.
This is a nationwide movement. NYC and many major cities have already recognized that art is free speech (mostly only after law suits) and artist do not need to be licensed. For more information on this just google artists rights.
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ajBookchin
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Posted: Wed Apr 23rd, 2008 11:55 pm |
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Mike L wrote: If you will take the time to read the ruling of white v. sparks you will find that what is defined as fine art as is as much of an expression of free speech as your right to come on this forum and express you views. Would you like to have the city/state tax you for the right of expressing your speech. Politicians give paid speeches all the time and the state does not require a TPT. Why? because it is protected as free speech under the first amendment. What does Free speech imply to you. It is a constitutional right not a privelege to be bestowed on you for the sake of collecting a tax from the consumer.
It has been implied the artists are trying to dodge paying the tax. How? It is a tax that would be passed on to the consumer. If a person is in commerce (which the ruling clearly states that free speech and thus self-expressive original art is not commerce) they just collect the tax from the purchaser and pass it on to the state/city.
Free speech is not commerce. It cost the city of Sparks $250,000 to argue this and the fine points of it.
I have read White V. Sparks, numerous times –
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/B9A3CB4FBC96C14A882573460049C8C4/$file/0515582.pdf
– taxation was not the issue, an attempt to define art was at issue because the city
of Sparks was “allowing the display of merchandise in its parks and Victorian Square
as well as the sale (in both places) of items that have received the pre-approval of city
employees” and this pre-approval would only allow “the sale of merchandise which
carries or constitutes a political, religious, philosophical or ideological message”,
criteria which Mr. White’s art did not meet.
Clearly, the city of Sparks was obstructing Mr. White’s free speech in this case.
However, this is not the case in Apache Junction – the issue is whether or not artists
should collect sales taxes.
In the context of the First Amendment, this opinion –
http://www.tn.gov/attorneygeneral/op/2003/OP/OP45.pdf
– related to taxation and the media, from the Office of the Attorney General of the
State of Tennessee, notes that “The right of free speech is not a right to be free of
taxes. As noted by Justice O’Connor, writing for the majority in Leathers v. Medlock,
499 U.S. 439, 447, 111 S.Ct. 1438, 1444 (1991), “We have said repeatedly that a
state may impose on the press a generally applicable tax.” (citations omitted). Yet, if a
tax is applied only to the press or “singles out” the press for special treatment, it is
constitutionally suspect.”
Therefore, in the case of Apache Junction, because the city is neither pre-approving
the content of art or demanding a sales tax on art inconsistent with any other
merchandise, I am certain there is no violation of Mr. White’s First Amendment rights.
On the other hand, I would doubt the Constitutionality of “Option X” considering that
it attempts to define what is “fine art” and discriminately accepts taxation of “other”,
not so “fine” art.
[The edit was a result of problems I was having with that first link to the Internet.]
Last edited on Thu Apr 24th, 2008 12:01 am by ajBookchin
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Mike L
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Posted: Wed Apr 23rd, 2008 09:12 pm |
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If you will take the time to read the ruling of white v. sparks you will find that what is defined as fine art as is as much of an expression of free speech as your right to come on this forum and express you views. Would you like to have the city/state tax you for the right of expressing your speech. Politicians give paid speeches all the time and the state does not require a TPT. Why? because it is protected as free speech under the first amendment. What does Free speech imply to you. It is a constitutional right not a privelege to be bestowed on you for the sake of collecting a tax from the consumer.
It has been implied the artists are trying to dodge paying the tax. How? It is a tax that would be passed on to the consumer. If a person is in commerce (which the ruling clearly states that free speech and thus self-expressive original art is not commerce) they just collect the tax from the purchaser and pass it on to the state/city.
Free speech is not commerce. It cost the city of Sparks $250,000 to argue this and the fine points of it.
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ajBookchin
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Posted: Wed Apr 23rd, 2008 08:22 pm |
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Could you please explain for me how the city of Apache Junction has violated Mr. White's First Amendment rights - or those of any other artists'.
As I understand, the city is simply requiring that anyone conducting a business transaction collect sales tax from the individual purchasing their work. How is this a violation of the First Amendment???
The artist are free to produce art of any content, their free to express themselves, they simply have to collect a tax as a result of their conducting business. They are not being harassed for their art or speech - they are being harassed because they want special privilege when conducting business. I do not believe that conducting business is protected under the First Amendment.
So, what is the deal??? Where is the violation of the First Amendment???
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Mike L
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Posted: Wed Apr 23rd, 2008 07:55 pm |
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On behalf of all the artists in the USA, I would like to be the first to publicly congratulate local artist Steve White. Sparks Nv. decided to take the battle all the way to the Supreme Court of the USA and the supreme court told them to go away, the Ninth circuit court ruling stands as is. So Mr. Taylor what was it you were saying in your editorial about changing laws if we didn't like them? It doesn't get anymore changed than the supreme court. The only one who needs to change laws around here is the city of AJ to come into compliance with federal law.. The sister city which artists have been putting pressure on lately is Tempe. The city attorney there has agreed to re-write the Tempe city codes to recognize the artists rights of free speech. AJ needs to do the same. The following link will take you to the AP newsstory of the case.Nevada Appeal .
Mike Lewis
AJ Fine Photography
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