The arrest of a man selling paintings at Baltimore's Inner Harbor has renewed debate over the confusing rules governing free speech along the waterfront promenade — an issue that already is the focus of an eight-year-old federal lawsuit.
City officials had been nearing a settlement in the lawsuit filed in 2003 by the American Civil Liberties Union, which contended that restrictions governing protests along the harbor are too restrictive. But those involved in the negotiations warn that Sunday's arrest of artist Mark Chase could complicate discussions — especially if he chooses to sue the city.
At the very least, his arrest adds a fresh twist to a complex First Amendment debate.
Chase, 29, who was charged with peddling without a permit, said Monday, "I just want artists to be able to show up when they want and sell their painting." The Brooklyn Park resident spent 13 hours in Central Booking before being released on personal recognizance early Monday.
"We're not criminals because we're artists," said Chase, who added that he refused to stop what he was doing, forcing his arrest instead of getting a citation. "I was not going to leave because it was my right to be there."
Chase has already won a temporary victory in federal court in a challenge to Ocean City's peddling law, which is similar to Baltimore's. A federal judge ruled recently that the town's requirement that Chase obtain a permit to paint and sell his landscapes on the boardwalk is an unconstitutional restriction of free speech.
The order is in place as long as his civil litigation is pending. A final ruling in his favor could force Ocean City officials to rewrite the town's law.
The judge's decision in that case is limited to the Eastern Shore town. But attorneys trying to resolve the separate free-speech litigation in Baltimore said they will most likely have to consider, review or incorporate the 50-page order regarding Ocean City into settlement talks about the Inner Harbor.
David Rocah, a staff attorney with the Maryland chapter of the ACLU, said the suit his office filed deals specifically with protesters, not permits for street vendors or performers. But he said Chase's case in Ocean City, coupled with his arrest in Baltimore on virtually the same issue, could influence talks designed to craft guidelines for public conduct at the Inner Harbor.
"Lots of the things we've been discussing and working out could have some broad bearing on performers or artists," Rocah said.
Assistant City Solicitor William R. Phelan Jr. said any ruling such as the one in Ocean City "becomes part of the general milieu. I don't know exactly what will happen with our case, but we'll have to think about the judge's ruling and take it into account."
Settlement talks with the ACLU are "in their final inch," Phelan said. They are designed to settle the suit and to develop guidelines for Inner Harbor protests and demonstrations, such as where, when and how they can occur.
"The draft rules are going to open up more places for people to do stuff," Phelan said. "There will be certain areas that are open and certain areas that are closed. We need to make ample opportunity for people who want to use their First Amendment rights."
The city attorney noted confusion not only by attorneys and the public and private entities that oversee the harbor, but also by police trying to enforce the law.
"Part of the settlement is going to involve training police officers," Phelan said. "We want to make sure that everybody knows what the rules are and how to carry them out. I've had some cops come just say, 'You know, we don't care what the rules are. We just want to know what the rules are.'"
The Inner Harbor promenade has a patchwork of quasi-private and public spaces, with different rules governing demonstrations, distributing leaflets, begging, vending and soliciting. And it's not always clear where the lines of demarcation are. Officials are trying to trying to resolve those issues in the civil case while avoiding a trial.
The ACLU views the entire promenade as akin to a public park, where unrestricted free speech should be allowed. The civil liberties group sued the city on behalf of a peace group, Women in Black, whose members were confronted by police while trying to protest.
The group already has won some concessions. McKeldin Square, a brick plaza at the southeast corner of Pratt and Light streets, is a designated "protest zone" where up to 25 people can gather without a permit to demonstrate.
That didn't stop a city police officer in 2009 from arresting members of Women in Black at that location. But officials such as Phelan quickly stepped in, ordered remedial training for police and apologized to the protesters.
Still, rules governing other locations remain murky at best. In May, police threatened to arrest city school teacher Bruce Friedrich for distributing leaflets near the National Aquarium. Officials with the Waterfront Partnership, which hires additional security for the harbor, said such activity is not allowed there.
Chase was arrested about 12:30 p.m. Sunday after trying to paint and sell his work in or near the Inner Harbor amphitheater. Chase said he was standing on the south side of the intersection of Pratt and Light streets, near a bicycle rack.
A police officer on bicycle patrol wrote in his report that Chase was "performing for money" and had three buckets with the word "Tips" painted on the side. The officer wrote that the buckets were on private property operated by General Growth Properties, which runs Harborplace. But a company spokesman said Chase was on city property.
The report says the officer and Chase argued about his rights before he was arrested, taken to the booking center and given an October trial date.
"It is my constitutional right to be here without prior approval," Chase said to the officer, according to a video that captured part of his encounter with police.
"Your constitutional rights have nothing to do with the law," the officer responded.
Baltimore police spokesman Anthony Guglielmi said the officer was trying to explain that he was enforcing a valid law and couldn't debate constitutional claims more suited for a courtroom than a street corner.
"The courts have a right to weigh in on it," Guglielmi said. "But as of today … we still have an ordinance we have to enforce."
The spokesman hoped for a quick resolution of the ACLU lawsuit.
"I think that once that is settled, we will have firm rules in place and things will be a lot clearer," Guglielmi said. "Until that gets settled, we will continue to have situations like this."