Bery v. City of New York
97 F.3d 689 (1996)
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Rule of Law:
Visual artwork displayed and sold in public spaces is fully protected under the First Amendment, and content-neutral regulations restricting such expression must be narrowly tailored to serve a significant government interest while leaving open ample alternative channels for communication.
Facts:
- Robert Bery and Robert Lederman are individual artists engaged in painting, photography, and sculpture who sought to display and sell their artwork in public spaces in New York City.
- Individual artists, including appellants, were arrested, threatened with arrest, or harassed by law enforcement officials for attempting to display and sell their creations without a general vendors license.
- Some artists had their artwork confiscated and damaged, and at least one artist refrained from selling art due to fear of arrest and destruction of her work.
- The City of New York's General Vendors Law, § 20-452 et seq., generally bars the sale or offering for sale of non-food goods in public spaces without a general vendors license.
- In 1982, the General Vendors Law was amended to exempt vendors of newspapers, books, and other written matter from the licensing requirement.
- The General Vendors Law limits the total number of general vendor licenses in effect at any given time to 853, with a waiting list of between 500 and 5,000 applicants, making new licenses virtually impossible to secure.
- New York State law requires that any qualifying veteran be issued a vending license, leading to 340 additional licenses above the 853 cut-off number, making a total of 1,193 general vendors licenses in effect.
- Violators of the licensing requirement face misdemeanor charges, fines, imprisonment, civil penalties, and seizure and forfeiture of their items.
Procedural Posture:
- Robert Bery and others (`94 Civ.4253`) and Robert Lederman and others (`94 Civ.7216`) filed separate actions in the United States District Court for the Southern District of New York.
- Both sets of plaintiffs subsequently moved for temporary restraining orders and preliminary injunctions.
- On October 24, 1995, the district court (Judge Cedarbaum) issued a memorandum and order jointly denying the motions for preliminary injunction in both actions, finding the General Vendors Law to be a content-neutral municipal ordinance that violated neither the First nor the Fourteenth Amendment.
- On October 26, 1995, the district court filed an amended opinion (906 F.Supp. 163).
- Both sets of appellants appealed the district court's denial of preliminary injunction.
- By order of the United States Court of Appeals for the Second Circuit dated December 13, 1995, the actions were consolidated on appeal.
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Issue:
Does a municipal ordinance that requires visual artists to obtain a general vendor's license to display and sell their artwork in public spaces, while exempting vendors of written materials and making licenses virtually impossible to obtain, violate the First Amendment and the Equal Protection Clause by effectively banning an entire category of expression?
Opinions:
Majority - Robert L. Carter
Yes, the municipal ordinance unconstitutionally infringes upon artists' First Amendment rights and violates the Equal Protection Clause. The First Amendment's protections extend beyond political speech and verbal expression to encompass visual art, such as paintings, photographs, and sculptures, as it widely conveys ideas, concepts, and emotions. The district court's view of visual art as having only limited constitutional protection was unduly restrictive, misperceiving the essence of visual communication. Furthermore, the sale of protected expressive materials is also protected; a speaker's rights are not lost merely because compensation is received, and the act of selling art in public places itself conveys messages about art's accessibility. Applying the time, place, and manner test for content-neutral regulations, the court found that while the City has a significant interest in preventing congestion, the licensing requirement is not narrowly tailored. It operates as a de facto bar for visual artists due to the severe limitation on licenses and the lengthy waiting list, which makes securing a license virtually impossible. The City's licensing exceptions for veterans and written materials also undermine its claim that the 853-license limit is narrowly tailored for congestion control. Moreover, the City failed to demonstrate that ample alternative channels of communication exist; selling art from homes or in galleries is not a substitute for public display and sale, which reaches a distinct audience and serves a different expressive purpose. The district court also erred in applying a rational basis test to the Equal Protection claim, as the ordinance impermissibly impinges on a fundamental First Amendment right, requiring strict scrutiny. Therefore, the ordinance's differential treatment of visual art and written material cannot stand, and the district court abused its discretion in denying the preliminary injunction.
Concurring - Mahoney
Concurs in the judgment of the Court and in the opinion of the Court, except for its discussion of the Equal Protection Clause of the Fourteenth Amendment. This means Justice Mahoney agrees with the overall outcome and the majority's reasoning regarding the First Amendment, but does not fully endorse or agree with the specific analysis related to the Equal Protection Clause.
Analysis:
This case significantly expands the recognized scope of First Amendment protection to encompass visual art, affirming that such expression is on par with written and verbal communication. It clarifies that the sale of expressive material is also protected and emphasizes that regulations restricting public expression must be genuinely content-neutral, narrowly tailored, and leave truly ample alternative public forums. The ruling challenges municipalities to find less restrictive means for managing public spaces than blanket prohibitions that stifle artistic expression, setting a precedent against effectively banning an entire medium of communication in public.
