City of New Orleans v. Clark
231 So.3d 625 (2018)
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Rule of Law:
A municipal ordinance that prohibits the outdoor retail sale of art throughout an entire city, except for a few narrowly defined areas, is an unconstitutional time, place, and manner restriction on speech because it is not narrowly tailored and does not leave open ample alternative channels for communication.
Facts:
- Lawrence Clark, an artist, set up a display table on a public median strip, known as the 'neutral ground,' at Decatur Street and Esplanade Avenue in New Orleans.
- Clark was displaying his original artwork on the table for the purpose of selling it to the public.
- New Orleans Municipal Code § 110-11 generally prohibits all outdoor retail sales on city property.
- Other sections of the code create exceptions, allowing artists with permits to sell their work only in a few specific, narrowly defined areas, such as the vicinity of Jackson Square and Edison Park, all located within the French Quarter.
- Clark was displaying his art for sale at a location outside of these specially designated zones.
- A city officer observed Clark's art display and his intent to sell.
Procedural Posture:
- The City of New Orleans issued a citation to Lawrence Clark for violating Municipal Code § 110-11.
- In New Orleans Municipal Court, Clark filed a motion to quash the charging affidavit, arguing the ordinance was unconstitutional.
- The municipal court judge denied the motion to quash.
- Clark sought review from the Appellate Division of the Criminal District Court for the Parish of Orleans, which affirmed the municipal court's ruling.
- The court of appeal initially granted a writ but vacated the lower courts' judgments due to improper service on the attorney general.
- After proper service, Clark's reasserted motion to quash was again denied by the municipal court, and that denial was affirmed by the Appellate Division of the Criminal District Court.
- The court of appeal then denied Clark's subsequent writ application.
- The Louisiana Supreme Court granted Clark's application for supervisory review.
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Issue:
Does New Orleans Municipal Code § 110-11, which effectively bans the outdoor retail sale of art everywhere in the city except for a few designated areas in the French Quarter, violate an artist's First Amendment right to freedom of speech?
Opinions:
Majority - Clark, Justice
Yes, the ordinance is unconstitutional. A municipal ordinance restricting protected speech in a public forum must be a reasonable time, place, and manner regulation that is content-neutral, narrowly tailored to serve a significant governmental interest, and leaves open ample alternative channels for communication. While the city's interests in public safety and economic vitality are significant and the ordinance is content-neutral, it is not narrowly tailored. A near-total, citywide ban on the outdoor sale of art is overly broad when less restrictive means, such as regulating the distance between vendors and roadways, could achieve the city's public safety goals. Furthermore, the ordinance fails to provide ample alternative channels for expression by confining all outdoor art sales to a few small areas within a single neighborhood (the French Quarter), effectively silencing this form of expression in every other neighborhood of a large and diverse city.
Dissenting - Johnson, Chief Justice
No, the ordinance is constitutional. The ordinance is a permissible time, place, and manner restriction on speech. It is narrowly tailored because it targets the specific activity—sidewalk vending—that causes the problems the city seeks to ameliorate, such as congestion and unfair competition for local merchants, and this interest would be achieved less effectively without the regulation. The rule does not need to be the least restrictive means possible. Moreover, the ordinance leaves open ample alternative channels of communication, as artists can still display their art, distribute literature, solicit donations, sell through indoor retail outlets, or apply for permits in the designated high-tourism areas. The ordinance does not prohibit all forms of expression, only the act of selling in non-designated public areas.
Analysis:
This decision reinforces the high bar governments must clear when regulating protected speech in public forums. It clarifies that the 'narrowly tailored' requirement of the time, place, and manner test forbids sweeping, citywide prohibitions when more specific, less restrictive alternatives are available. The analysis of the 'ample alternative channels' prong is particularly significant, establishing that confining expressive activity to one small, specific area of a large city is insufficient to satisfy the First Amendment. This precedent makes it more difficult for municipalities to enact broad geographic bans on expressive conduct like art vending, forcing them instead to craft more nuanced regulations that address specific public safety or aesthetic concerns without unduly burdening speech.
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