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Trebert v. City of New Orleans

US District Court - Eastern District of Louisiana
2005 U.S. Dist. LEXIS 1560 (2005)
ELI5:

Rule of Law:

A content-neutral time, place, and manner regulation on speech in a public forum is unconstitutional if the government fails to meet its evidentiary burden of proving the regulation is narrowly tailored to serve a significant government interest and leaves open ample alternative channels for communication.


Facts:

  • Marc C. Trebert is an artist who creates works by taking digital photographs, printing them, and coloring the prints with pastels.
  • The City of New Orleans has a municipal ordinance (§ 110-121) governing the historic Jackson Square area, which permits artists to sell only 'original' art.
  • The ordinance defines 'original' as works 'accomplished essentially by hand' and expressly 'precludes any mechanical or duplicative process in whole or part.'
  • The City granted Trebert a 'Jackson Square A' permit, allowing him to create and sell art in the designated area.
  • Trebert intended to sell his photo-based artwork, which involves a digital camera and a printer, in the Jackson Square area.
  • On January 13, 2004, a New Orleans police officer cited Trebert for violating the ordinance because his art was not considered 'original' due to the mechanical process involved.

Procedural Posture:

  • New Orleans Police cited Marc C. Trebert for violating a municipal ordinance and summoned him to Municipal Court on a criminal misdemeanor charge.
  • The Municipal Court temporarily enjoined Trebert from selling paintings or drawings produced with mechanical devices.
  • The City agreed to dismiss the criminal citation and refrain from enforcing the ordinance against Trebert pending the outcome of a federal lawsuit.
  • Trebert sued the City of New Orleans in the U.S. District Court for the Eastern District of Louisiana, asserting the ordinance violated his First Amendment rights.
  • Trebert filed a Motion for Partial Summary Judgment on his First Amendment claim.

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Issue:

Does a municipal ordinance that prohibits artists from selling works created with 'any mechanical or duplicative process' in the Jackson Square area violate the First Amendment's free speech protections as applied to an artist who sells digitally-initiated photographs colored with pastels?


Opinions:

Majority - Wilkinson, J.

Yes. As applied to Trebert, the municipal ordinance unconstitutionally infringes upon his First Amendment right to freedom of speech. For a content-neutral time, place, and manner restriction on speech to be constitutional, it must be narrowly tailored to serve a significant governmental interest and leave open ample alternative channels for communication. Here, while preserving the French Quarter's historic ambiance is a significant government interest, the City of New Orleans failed to carry its evidentiary burden on both prongs of the test. The City offered no evidence, only 'mere conjecture,' that banning Trebert's art was necessary to preserve the area's charm, thus failing the 'narrowly tailored' requirement. Furthermore, the City failed to show that the alternative venues it suggested were 'ample,' as it provided no evidence that they were as accessible, inexpensive, or effective for reaching Trebert's intended audience as the unique Jackson Square location.



Analysis:

This decision reinforces the principle that a government's justification for restricting protected speech cannot be based on speculation or unsupported assertions. It places a clear evidentiary burden on the government to prove that a content-neutral regulation is narrowly tailored to its stated interest. The ruling is significant for protecting modern and technologically-assisted forms of art from being excluded from public forums based on arbitrary definitions of 'original' or 'authentic.' By invalidating the ordinance 'as applied,' the court provides a victory for the artist without completely striking down the law, leaving open the possibility that the city could enforce it in a different case if it could produce sufficient evidence.

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