in support of free expression
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©Copyright 2005 NCAC
WEB DESIGN
Jeanne Criscola Criscola Design
free speech first amendment censorship
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A
group of visual artists brought suit against the
city of New York challenging the General Vendor's
Law, which prohibited them from selling their work
in public places without a general vendor's license.
The ordinance exempted the sale of written materials
but not art. In addition, any veteran who qualified
for a license was given one, which caused the number
of issued licenses to increase beyond the originally
specified limit. The District Court ruled that the
law was a content-neutral
ordinance, which may restrict the time, place, and
manner of speech, provided that it is narrowly tailored
to serve a significant government interest and leaves
open alternative channels for communication. The
Court found that the motivation for the ordinance
was based on neither censorship of the work nor
animus toward the artists; rather, it was designed
to address street congestion, a goal that would
be achieved less effectively without the ordinance.
The restriction on the petitioners' right to sell
artwork was deemed by the District Court an incidental
consequence of the ordinance. In its analysis, the
District Court adopted a restrictive view of the
First
Amendment, viewing it as safeguarding primarily
the free flow of political and religious views.
Accordingly, it upheld the city ordinance.
The case was appealed to the Second Circuit Court
of Appeals. On appeal, the city argued that the
merchandising of art is not protected expression
and, even if it were, the city has a significant
interest in keeping its public spaces safe and free
from congestion, and alternative channels of expression
exist in the form of street fairs and sales from
the artists’ homes. The artists argued that
their art was speech for which they would have no
adequate alternative channel of expression in a
public
forum if the ordinance were upheld.
The Second Circuit Court found first that visual
art, whether sold for profit or given away, is as
much speech as written work for purposes of the
First Amendment. The Court then determined that
the ordinance failed even if it were analyzed under
the less-demanding content-neutral test. In its
content-neutral analysis, the Court found that,
while the city had a significant interest in keeping
its public spaces safe and free from congestion,
the ordinance was not narrowly tailored to meet
this goal. The city could not bar an entire category
of expression to effectuate its goal. The Court
agreed with the artists that they were entitled
to a public forum for their expressive activity,
and the city had not shown that adequate alternative
public forum existed for the artists’ expression.
As a result, the Court determined that the District
Court had arrived at an erroneous conclusion, and
reversed its decision by granting the artists' motion
for a preliminary
injunction. |
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Significance: |
| This
case is significant for its inclusion of visual
street art in the types of speech protected by the
First Amendment. Additionally, the case seems to
say that, for purposes of content-neutral analysis,
alternative channels for expression are inadequate
if they are not widely available. |
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| These
materials are not intended, and should not be used, as
legal advice. They necessarily contain generalizations
that are not applicable in all jurisdictions or circumstances.
Moreover, court decisions may be superceded by subsequent
rulings, and may be subject to alternative interpretations.
Corrections, clarification, and additions are welcome.
Please send to ncac@ncac.org. |
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