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Proposed restrictions on Fort Williams artists raise free speech issue in Cape Elizabeth

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Proposed restrictions on Fort Williams artists raise free speech issue in Cape Elizabeth

CAPE ELIZABETH — A public hearing grew tense Monday when a local artist and his wife accused the Town Council of undermining the U.S. Constitution.

Kris and Marilyn Kristiansen took turns at the podium to lambaste the council and the Fort Williams Advisory Commission for proposing new rules to limit the number of open-air art vendors at the 90-acre park and also restrict their location to an area adjacent to the world-famous Portland Head Light.

Ultimately, the council tabled the issue, 4-2, choosing to consider the proposal again during a workshop and after a tour of the park later this month.

Kris Kristiansen, of Alewife Cove Road, read aloud Monday a lengthy statement in his Irish brogue. He introduced himself as a lifelong artist who has sold his works in more than 15 countries, without problems.

"In fact, I have always found a warm welcome and the recognition that artists add to the cultural health and diversity of any town or city," he said. "Having learned that artists actually have First Amendment rights under the constitution of this country, I assumed that welcome would extend here as well."

Kristiansen began selling art at Fort Williams on May 6 and is the only independent artist working within the park, he said. Several other artists work on behalf of the Museum at Portland Head Light and gift shop.

Soon after Kristiansen's arrival, the town tasked the Fort Williams Advisory Commission with "preserving the aesthetic, historic and open-space characteristics of the park" while maintaining visitors' First Amendment rights to free speech, according to a summary by Councilor Kathy Ray.

Weeks later, the commission unanimously proposed that the number of open-air art vendors within the park be limited to eight, and that they should be restricted to an area near a parking lot, away from the lighthouse.

As the lone independent artist who does business at the park, Kristiansen felt singled out.

"I am disappointed that after only two months, the town of Cape Elizabeth sees me as a problem to be regulated and banished to an unsuitable location. As far as I can tell from the description in the proposals, that site is beside a very dusty gravel car park – a bad thing for my art and my asthma," he said. "The site also deliberately excludes me from a whole section of the public."

Marilyn Kristiansen next took the podium and read from her statement. She said the commission's proposal would violate the Constitution.

"Any artist who exhibits their work in a public place does so under the legal umbrella of the First Amendment of the United States Constitution," she said. "That artist, whether they chose to sell or exhibit their work, is not a commercial vendor under the law; they are a member of the general public exercising their constitutional right to freedom of speech.

"The question of regulating artists in Fort Williams Park is a constitutional issue," she continued, "not just something the town can make rules about if no one objects."

Marilyn Kristiansen also questioned the committee's position that art vendors could negatively impact the park's aesthetics.

"It is more than a little hypocritical of the town to talk about preserving the pristine beauty of the lighthouse from commercialism when they have a shop, museum, several outdoor art vendors, two food vendors and a brand new wooden shed to collect $40 from every bus, all clustered around the lighthouse."

Then she cautioned the council to tread carefully.

"Our Town Council, which includes three lawyers, should think very carefully before rushing to make new regulations for a non-existent problem of one artist, when in all probability, these rules are unconstitutional and expose the town to costly lawsuits they would likely lose," Kristiansen said.

Bill Brownell, chairman of the Fort Williams Advisory Commission, spoke in defense of the proposal, saying the town's attorney vetted it. He said artists indeed have the right to sell wares on public property, but governmental entities also have the right to restrict their business in "appropriate, reasonable ways."

"There's no animus felt by the commission against street artists," Brownell said. "I, like my colleagues on the commission, think the (proposed) regulations are very fair and very reasonable."

The three attorneys who sit on the Town Council – David Sherman, Caitlin Jordan and Jamie Wagner – all argued to table the discussion until they had an opportunity to walk the grounds at Fort Williams and see the location that is proposed for art sales. Wagner said he also wanted to take a closer look at the proposal's language and case law.

Sherman agreed, however, that some regulation is necessary. Allowing unlimited numbers of artists near Portland Head Light would "kill the goose that's laying the golden egg," he said, by overcrowding the park's main attraction.

Nonetheless, with only one independent artist at the park, there is little urgency to act immediately, Sherman said.

"We haven't been overrun yet," he said, "so I'd like to spend some time looking at it."

Town Manager Michael McGovern argued against delaying action, because more artists might arrive in the park now that the issue has attracted public attention, he said.

In the end, Councilors Jim Walsh, Jordan, Sherman and Wagner voted for the delay. The workshop will begin at 5:30 p.m., Tuesday, July 30, at the parking circle near Portland Head Light and continue in Council Chambers immediately afterward.

Ben McCanna can be reached at 781-3661 ext. 125 or bmccanna@theforecaster.net. Follow him on Twitter: @BenMcCanna.