(Cite as: 1995 WL 625707 (S.D.N.Y.))
Robert BERY, James Albert Harris, Anne Reiss, Ricardo Antonio Pascual, Artists
for Creative Expression on the Sidewalks of New York City, Plaintiffs,
v.
CITY OF NEW YORK, Rudolph Giuliani, Mayor, City of New York, William Bratton,
Chief, New York City Police Department, Robert Morgenthau, District Attorney
New York County, Richard A. Brown, District AttorneyQueens County, William L.
Murphy, District AttorneyRichmond County, Charles H. Hynes, District Attorney
Kings County, Robert F. Johnson, District AttorneyBronx County, Alfred C.
Cerullo III, Commissioner of New York City Department of Consumer Affairs,
Henry J. Stern, Commissioner, New York City Department of Parks and Recreation,
New York City Department of Parks and Recreation, Marilyn Gelber, Commissioner
of the Environmental Control Board of the City of New York, Defendants.
Robert LEDERMAN, Jodi Bogus, Knut Masco, Alexis Portilla, and Arthur Robbins,
Plaintiffs,
v.
The CITY OF NEW YORK, Rudolph Giuliani, Mayor of the City of New York, in his
individual and official capacities, The New York City Police Department,
William Bratton, Commissioner of the New York City Police Department, in his
individual and official capacities, Department of Consumer Affairs of the City
of New York, Alfred C. Cerullo, III, Commissioner of Department of Consumer
Affairs of the City of New York, in his individual and official capacities,
Environmental Control Board of the City of New York, and Anne J. McCarthy,
Executive Director of the Environmental Control Board of the City of New York,
in her individual and official capacities, Defendants. Nos. 94 Civ. 4253(MGC),
94 Civ. 7216(MGC).
United States District Court, S.D. New York.
Oct. 25, 1995.
NOAH A. KINIGSTEIN, Esq. Attorney for Plaintiffs Robert Bery at al. 315
Broadway, Suite 200 New York, New York 10007
DEWEY BALLANTINE Attorney for Plaintiffs Robert Lederman et al. 1301 Avenue
of the Americas New York, New York 100196092 By: Wayne A. Cross, Esq. Randall
Fox
VOLUNTEER LAWYERS FOR THE ARTS of Counsel for Plaintiffs Robert Lederman at
al. 1 East 53rd Street New York, New York 10022
PAUL A. CROTTY Corporation Counsel of the City of the City of New York
Attorney for Defendants 100 Church Street, Room 5J16 New York, New York 10007
By: Robin Binder, Esq.
CEDARBAUM, Judge.
*1 Does a contentneutral municipal ordinance of general application
violate the First and Fourteenth Amendments because it incidentally restricts
the sale of art on the sidewalks of New York City? Plaintiffs in these related
cases are artists who sell their original paintings on public sidewalks and an
artists' advocacy organization. They move for a preliminary injunction
prohibiting the enforcement against them of the New York City General Vendors
Law (Administrative Code of the City of New York s 20452 at seq.) on the
grounds that the application of the ordinance to their activities violates
their rights to freedom of expression and equal protection of the laws under
the First and Fourteenth Amendments to the Constitution. Plaintiffs do not
contend that their paintings are in any respect political, but rather take the
position that all works of fine art are forms of expression which fall under
the First Amendment's protection of "speech," and that that protection is
absolute.
Art is enormously important in advancing civilization. How the flowering of
art in boat encouraged in our society is not an issue for the court. These
cases do not involve censorship of any kind. There is no suggestion that, in
enacting the ordinance, the City Council was motivated by any animus against
artists or that the sale of art was a targeted activity. The only question is
whether the incidental effect on artists of a general local regulation of all
street sales violates the Constitution of the United States. For the reasons
discussed below, plaintiffs' motions are denied.
Background
The New York City General Vendors Law (the "Ordinance") provides:
It shall be unlawful for any individual to act an a general vendor without
having first obtained a license in accordance with the provisions of this
subchapter, except that it shall be lawful for a general vendor who hawks,
peddles, sells or offers to sell, at retail, only newspapers, periodicals,
books, pamphlets or other similar written matter, but no other items required
to be licensed by any other provision of this code, to vend such without
obtaining a license therefor.
Admin.Code of the City of N.Y. s 20453. The term "general vendor" is defined
as:
A person who hawks, peddles, sells, leases or offers to sell or lease at
retail, goods or services, including newspapers, periodicals, books, pamphlets
or other similar written matter in a public space.
Id. s 20452(b).
Amendment I of the Constitution provides: "Congress shall make no law ...
abridging the freedom of speech, or of the press...." [FN1]
Plaintiffs are artists who sell or desire to sell their original works on
public sidewalks. Most of the plaintiffs have been arrested or threatened with
arrest, have received summonses, have been fined, and have had their works
confiscated for violating the ordinance. [FN2]
The City has imposed a limit of 853 on the number of licenses to be issued
under the ordinance. [FN3] See N.Y. City Admin. Code s 20459; Binder
Decl. P 11. There are between 500 and 5,000 applicants on the waiting list to
obtain licenses at any given time, and the wait to obtain one is expected to be
between three and five yearn. (Richard Schrader Aff. PP 7, 9 (Ex. D to
Lederman Supp. Aff.)) None of the plaintiffs in any of the actions appears to
be on the waiting list at the present time. [FN4]
<BB> *2<EB> In addition to their First Amendment attack on the Ordinance, plaintiffs
contend that the exemption of sellers of "newspapers, periodicals, books,
pamphlets or other similar written matter" from the licensing requirement
deprives artists of the equal protection of the laws and thus violates that
clause of the Fourteenth Amendment.
Standard for Preliminary Injunction
To obtain a preliminary injunction, plaintiffs must show that they are "likely
to suffer possible irreparable injury" and "either (1) a likelihood of success
on the merits of [their] case or (2) sufficiently serious questions going to
the merits to make them a fair ground for litigation and a balance of hardships
tipping decidedly in [their] favor." Reutors Ltd. v. United Press Int'l,
Inc., 903 P.2d 904, 907 (2d Cir.1990) (citation and internal quotation marks
omitted). In these cases, the two prongs of the threshold showing required for
injunctive relief merge into one. Since violation of constitutional rights in
the irreparable injury asserted, see Mitchell v. Cuomo, 748 F.2d 804 (2d
Cir.1984), in order to show irreparable injury, plaintiffs must show likelihood
of success on the merits.
Does the Ordinance Violate Plaintiffs' First Amendment Rights?
There are few cases which discuss whether the First Amendment prohibits
application of a general vending licensing scheme to the sale of works of fine
art on public property. New York state courts have decided several cases under
the Ordinance. The New York City Criminal Court dismissed a charge or
violating the Ordinance against Robert Bery, one or the plaintiffs in these
actions. See People v. Bery, N.Y.L.J., May 20, 1994, at 22. The court
concluded that "the licensing requirement is inapplicable to this case based on
the First Amendment rights of the defendant. Not only did the defendant's work
express a clear political viewpoint but, in addition, some of his work included
the written word...." Id. [FN5] In another case, the New York City Criminal
Court hold that the Ordinance did not violate the equal protection rights of an
artist who sold his own paintings of floral pastels in the style of Rene
Magritte on the city sidewalks. See People v. Milbry, 530 N.Y.S.2d 928
(N.Y. City Crim. Ct.1988). In Milbry, the court hold that under the test
set forth in United States v. O'Brien, 391 U.S. 367, 37677 (1968), there is
no First Amendment bar to the inclusion or artists in a general licensing
requirement for street vendors, and also held that the exemption for sellers of
written matter did not deprive sellers of paintings of equal protection of the
laws under the Fourteenth Amendment. Milbry, 530 N.Y.S.2d at 93031.
One other state court has dealt with the issue of First Amendment protection
for the street sale or art in a case involving facts similar to those presented
in these cases. In San Francisco Street Artists Guild v. Scott, 112
Cal.Rptr. 502 (Cal.Ct.App.1974), artists and craftspeople who wished to sell
works (including paintings and sculptures) of their own creation on the
sidewalks of San Francisco were denied the licenses required by a city
ordinance. The California Court of Appeal found that the works were not "so
likely to communicate expression of the type of ideas held sacred by the First
Amendment as to vent them with such broad rights an are held by pamphleteers or
purveyors of newspapers." Id. at 505. The court therefore refused to
"enlarge" the First Amendment to protect the commercial activity of selling
arts and crafts on public sidewalks. Id.
<BB> *3<EB> Plaintiffs argue that Milbry and San Francisco Street Artists are
not persuasive because there was no indication in those cases that artists were
unable to obtain licenses, whereas in this case, plaintiffs allege that they
are unable to obtain licenses. (Lederman Pl.'s Reply Men., at 34.)
The text of the First Amendment explicitly refers to "speech" and "the
press." The precise nature of First Amendment protection for painting and
sculpture with no verbal elements has not been addressed by the federal
courts. Although several opinions include generalized statements concerning
the protection of artistic works by the First Amendment, see Miller v.
California, 413 U.S. 15, 34 (1973) ("The First Amendment protects works which,
taken as a whole, have serious literary, artistic, political, or scientific
value, regardless of whether the government or a majority of the people approve
of the ideas these works represent."); Serra v. United States Gen. Servs.
Admin., 847 F.2d 1045, 1048 (2d Cir.1988); Piarowski v. Illinois Community
College, 759 F.2d 625, 628 (7th Cir.1985), those cases did not present the
issues raised here.
There in some expressive content in works of fine art, just as there is in
works of applied or decorative art. Both the silversmith and the sculptor
whose works are for sale are seeking to reach others. But the development of
First Amendment protection for symbolic speech has evolved primarily from
judicial concern about government censorship. With respect to regulations
which have no purpose or effect to censor content, it is much more difficult to
identify the extent, if any, of First Amendment protection for activity which
is not verbal. While in certain circumstances works of art may be "protected"
by the First Amendment, it does not follow that the City violates the First
Amendment whenever it regulates activity in public areas and incidentally
frustrates the desires of some artists to sell their work in such places. In
general, "when 'speech' and 'nonspeach' elements are combined in the same
course of conduct, a sufficiently important governmental interest in regulating
the nonspeech element can justify incidental limitations on First Amendment
freedoms." Barnes v. Glen Theatre, Inc., 501 U.S. 560, 567 (1991) (quoting
United States v. O'Brien, 391 U.S. 367, 376 (1968)).
Plaintiffs do not distinguish between contentbased and contentneutral
regulation. Most of the cases cited by plaintiffs which mention First
Amendment protection for artistic expression involved challenges to censorship,
i.e., contentbased regulations or government action. See Miller v.
California, 413 U.S. 15 (1973); Piarowski v. Illinois Community College,
759 F.2d 625 (7th Cir.). cert. denied, 474 U.S. 1007 (1985). The only came
offered by plaintiffs in support of First Amendment protection for nonverbal
artistic expression which involved a contentneutral municipal regulation is
Ward v. Rock against Racism, 491 U.S. 781 (1989). The plaintiffs in that
case challenged a New York City Ordinance that required any musical performer
who performed in the Central Park bandshell to use sound equipment and a sound
technician provided by the City. The Supreme Court rejected the attack on the
constitutionality of the regulation.
<BB> *4<EB> The distinction between contentbased and contentneutral regulation in
important in First Amendment jurisprudence. Contentbased regulation in
subject to strict scrutiny because a regulation that discriminates on the basis
of content is a "red flag" indicating that the government intends to censor a
particular message. Contentneutral regulations, on the other hand, are
rejected to a more lenient level of scrutiny. The Supreme Court teaches that a
contentneutral government regulation will be uphold if (1) it is within the
constitutional power of the government; (2) it furthers an important or
substantial governmental interest; (3) the governmental interest is unrelated
to the suppression of free expression; and (4) the incidental restriction on
First Amendment freedoms is no greater than essential to the furtherance of
that interest. United States v. O'Brien, 391 U.S. 367, 37677 (1968).
There is no question that regulation of activities in public areas is within
the City's constitutional power. The City's interest in keeping the public
streets free of congestion for the convenience and safety of its citizens in
an "important or substantial" interest. The regulation furthers that interest
and is unrelated to the suppression of free expression. Regulations that
burden speech incidentally are "no greater than essential, and therefore [are]
permissible under O'Brien, so long as the neutral regulation promotes a
substantial government interest that would be achieved less effectively absent
the regulation." United States v. Albertini, 472 U.S. 675, 68889 (1985);
see also Ward v. Rock Against Racism, 491 U.S. at 801.
The limit of 853 licenses was established when the City Council enacted Local
Law No. 50 of 1979, which amended Section 20459(a) of the Administrative Code.
In enacting this law, the City Council found that "a limit on the total number
of general vendor licenses should be established, because the business of
general vending is intimately connected with problems of congestion on streets
and sidewalks, and because an increase in the number of general vendors would
worsen those conditions." L.L. 50/1979, s 1. The City's goal in setting the
license limit in 1979 was to prevent an increase in congestion. Thus, the
incidental restriction on artists' freedom of expression caused by the license
limit is permissible under O'Brien since the City's goal of keeping the
public sidewalks free of congestion would be achieved lose effectively in the
absence of the regulation.
City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988), cited
by plaintiffs, demonstrates a concern about government censorship, which is not
present in these cases. City of Lakewood invalidated a newsrack licensing
ordinance which gave municipal officials considerable discretion to deny
licenses. Although that came involved a regulation that was contentneutral on
its face, the concern that licensing officials would abuse their discretion to
deny licenses on the basis of content was the reason for the conclusion that
the First Amendment had been violated. See City of Lakewood, 486 U.S. at
76364. A licensing ordinance that limited the discretion of officials to
license newsstands and newsracks was upheld in Graff v. City of Chicago, 9
F.3d 1309, 131719 (7th Cir.1993), cert. denied, 114 S.Ct. 1837 (1994).
There is no evidence that the licenses required by the Ordinance are issued on
any but a "firstcome, firstserved" basis. See People v. Milbry, 530
N.Y.S.2d 9280 930 (N.Y. City Crim. Ct.1988). Thus, there is no threat of
censorship through the abuse of discretion by licensing officials.
<BB> *5<EB> Plaintiffs also point to the recent Supreme Court decision in City of
Ladue v. Gilleo, 129 L.Ed.2d 36 (1994) for the proposition that a content
neutral regulation may violate the First Amendment by prohibiting "too much
protected speech." Id. at 44. The municipal ordinance in Ladue was not
a general regulation. It was explicitly limited to signs, a medium of verbal
expression, and it prohibited the display of signs on private residential
property. Thus, the ordinance directly limited the right of citizens to
"speak" on their own property. Ladue at 49. Cf. City Council of Los
Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984) (upholding ordinance
prohibiting the posting of signs on public property).
Plaintiffs argue that the cases at bar are analogous to Ladue because the
practical effect of the ordinance is to completely prohibit the sale of art on
the public streets and sidewalks. Because the Ladue ordinance was directed
at speech and applied to messages displayed on private property, the Ladue
ordinance was unlike the ordinance of New York City in critical respects.
Ladue does not change the First Amendment analysis established by
O'Brien. Unlike the plaintiffs in Ladue, New York City's street artists
are entirely free to sell their works on their own property.
Plaintiffs do rely on some cases that involved contentneutral general
regulations with an incidental effect on expression. Plaintiffs cite cases
that hold that the sale of merchandise that bears a message expressing the
seller's beliefs is a protected activity under the First Amendment. See
Gaudiya Vaishnava Soc'y v. City of San Francisco, 952 F.2d 1059 (9th Cir.1991).
cert. denied, 504 U.S. 914 (1992); One World One Family Now v. City of
Key West, 852 F.Supp. 1005, 1008 (S.D.Fla.1994) (granting preliminary
injunction on ground that plaintiffs demonstrated substantial likelihood that
"the sale of messagebearing Tshirts will be found to be fully protected First
Amendment activity"); People v. Krebs, 282 N.Y.S.2d 996 (N.Y. City Crim.
Ct.1967). The expression in those cases, however, consisted of words.
Moreover, the words stated political or religious views. Items bearing words
that express political or religious views are much closer to the heartland of
First Amendment protection of "speech" than the apolitical paintings in these
cases.
When a regulation is contentneutral, courts engage in a balancing test to
determine whether the impact on freedom of expression outweighs the
government's interest in the regulation. See generally Laurence H. Tribe,
American Constitutional Law s 1223 (2d ed.1988); Geoffrey R. Stone, Content
Neutral Restrictions, 54 U. Chi. L.Rev. 46 (1987). The government interest
required to justify a general contentneutral regulation which incidentally
interferes with nonverbal expression need not be as substantial as the
governmental interest required for direct interference with "Pure speech."
East Hartford Ass'n v. Board of Educ. of East Hartford, 562 F.2d 838, 858
(2d Cir.1977) (teacher's refusal to wear a tie as a view of life and society
was a vague message which was "close to the 'conduct' end of the 'speech
conduct' continuum"). Although some art may be very close to "pure speech,"
see, e.g., Sefick v. City of Chicago, 485 F.Supp. 644
(N.D.Ill.1979) (display of lifesize plaster figures with tape recorded
dialogue satirizing mayor's snow removal efforts), plaintiffs' art does not
carry either words or the particularized social and political messages upon
which the First Amendment places special value. See Close v. Lederle, 424
F.2d 988, 98990 (lat Cir.) (refusing to extend cases dealing with students'
rights to hear unpopular speakers to artist's claim that he had a right to
exhibit works in University building on ground that those cases "involve[d] a
medium and subject matter entitled to greater protection than plaintiff's
art"), cert. denied, 400 U.S. 903 (1970); San Francisco Street Artists
Guild v. Scott, 112 Cal.Rptr. 502, 505 (Cal.Ct.App.1974).
<BB> *6<EB> Plaintiffs have not shown that the general contentneutral ordinance as
it incidentally affects artists who wish to sell their apolitical paintings on
the sidewalks of New York unconstitutionally interferes with their freedom of
speech under the First and Fourteenth Amendments.
Equal Protection
When a statute neither impinges on a fundamental right, such as freedom of
speech, nor uses a suspect classification, such as race or gander, it will not
be found to violate the Equal Protection Clause of the Fourteenth Amendment as
long as it bears a rational relation to a legitimate governmental purpose.
Regan v. Taxation With Representation of Washington, 461 U.S. 540, 547
(1983); Story v. Green, 978 F.2d 60, 6364 (2d Cir.1992) (applying rational
basis standard to statute that repealed exemption of veterans from N.Y. General
Business Law).
Since, as discussed above, the Ordinance does not impermissibly impinge upon
plaintiffs' First Amendment rights, its different treatment of the sale of
written matter and the sale of art need only meet rational basis scrutiny. The
Ordinance exempts only sellers of "newspapers, periodicals, books, pamphlets or
other similar written matter." Such written matter is the heartland of the
First Amendment. [FN6] Because art is farther from the core than the written
word, the City's decision to exempt sellers of written matter cannot be seen an
irrational. Indeed, it shows the rational desire of the City Council to avoid
the possibility of violating the First Amendment. Therefore, the city's
vending ordinance does not violate the Equal Protection Clause of the
Fourteenth Amendment.
Conclusion
Without likelihood of success on the merits of their constitutional challenge,
plaintiffs do not show irreparable harm. Accordingly, for the reasons
discussed above, plaintiffs' motions for a preliminary injunction are denied.
SO ORDERED.
FN1. The First Amendment's protection of freedom of speech and freedom of
the press applies to the states through the Fourteenth Amendment.
Schneider v. Irvington, 308 U.S. 147 (1939).
FN2. One plaintiff, Anne Rains, has not sold her work on the public
sidewalks, but alleges that she would like to sell her work on the public
sidewalks, but has not done so because she fears the consequences of doing
so.
FN3. N.Y. Gen. Bus. L. s 32(1) provides that New York residents who are
veterans of any war or who have served in the United States armed forces
oversees "shall have the right to hawk, peddle, vend and sell goods, wares
or merchandise or solicit trade upon the streets and highways within the
county of his or her residence, an the case may be, or if such county is
embraced wholly by a city, within such city, by procuring a license for
that purpose to be issued an herein provided." In order to comply with
this statute, the Department of Consumer Affairs ("DCA") has adopted a
policy that any veteran who wishes to obtain a license will be issued one
regardless of the 853 license limit. As of October 21, 1994, 340 licenses
had been issued to veterans over and above the limit. Thus, the actual
number of licenses in effect is approximately 1,193. (See Binder Decl. P
11 n. 7.)
FN4. Some plaintiffs state that when they inquired about applying for a
license,. they were told by the DCA that the waiting list was closed and
they should inquire at a later date. (Bogus Aff. P 6; Lederman Aff. P
12.) Others state that they were told by DCA employees that artists wore
not required to have licenses. (Smolinsky Aff. P 3; Robbins Aff. P 5.)
Another states that she didn't apply for a license because licensed vendors
and other artists told her that licenses for artists were unobtainable.
(Portilla Aff. P 4.)
FN5. Bery does not claim in these cases that his art convoys a political
message.
FN6. "Congress shall make no law ... abridging the freedom of speech, or
of the press...." U.S. Const. amend. I.
END OF DOCUMENT
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