Opinion of Judge Miriam Cedarbaum, U.S. District Court, Southern District, New York (October 25, 1995).

(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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