UNITED STATES COURT
FOR THE SECOND CIRCUIT
Nos. 1620, 1621, 1782 August Term 1995
(Argued: April 26, 1996 Decided: October 10, 1996)
Docket Nos. 95-9089 (L), 95-9131, 96-7137
ROBERT BERY, JAMES ALBERT HARRIS, ANNE REISS, RICARDO ANTONIO PASCUAL,
ARTISTS FOR CREATIVE EXPRESSION ON THE SIDEWALKS OF NEW YORK CITY, ROBERT
LEDERMAN, JODI BOGUS, KNUT MASCO, ALEXIS PORTILLA and ARTHUR ROBINS,
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 Attorney-Queens County; WILLIAM
L. MURPHY, District Attorney-Richmond County; CHARLES H. HYNES, District
Attorney-Kings County; ROBERT F. JOHNSON, District Attorney-Bronx County;
ALFRED C. CERULLO, III, Commissioner of New York City Department of Consumer
Affairs; NEW YORK CITY DEPARTMENT OF CONSUMER AFFAIRS; HENRY J. STERN,
Commissioner, New York City Department of Parks & Recreation; MARILYN
GELBER, Commissioner of the New York City Department of Environmental
Protection of the City of New York; 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
B e f o r e: VAN GRAAFEILAND and MAHONEY, Circuit
Judges, and CARTER, District
Appeal from a judgment entered in the United States District Court for
the Southern District of New York, Miriam Goldman Cedarbaum, Judge,
denying motions to enjoin enforcement of the General Vendors Law, [[section]]
20-452 et seq.
of the Administrative Code of the City of New York, on the grounds that
the complained enforcement was prohibited by neither the First Amendment
nor the Equal Protection Clause of the Fourteenth Amendment to the Constitution
of the United States.
NOAH A. KINIGSTEIN, New York, NY
for Bery Plaintiffs-Appellants
RANDALL M. FOX, New York, NY
(Dewey Ballantine, New York, NY)
for Lederman Plaintiffs-Appellants
ELIZABETH I. FREEMAN, New York, NY (Paul A. Crotty, New York, NY
Corporation Counsel of the City of
New York, Leonard Koerner, Robin Binder, Assistant Corporation Counsels)
City of New York
CARTER, District Judge:
Appellants Robert Bery et
al. (94 Civ. 4253) and
Robert Lederman et al.
(94 Civ. 7216), in separate actions below, sought by motions for a preliminary
injunction to enjoin enforcement of the General Vendors Law, [[section]]
20-452 et seq.
of the Administrative Code of the City of New York ("General Vendors
Law"), which bars visual artists from exhibiting, selling or offering
their work for sale in public places in New York City without first obtaining
a general vendors license. Appellees City of New York and various municipal
bodies and officials charged with administration and enforcement of the
General Vendors Law ("the City") opposed the motions. The district
court denied the motions; both sets of appellants appeal.
Appellants are individual artists engaged in painting, photography and
sculpture and an artists' advocacy organization, Artists for Creative
Expression on the Sidewalks of New York. The individual artists have been
arrested, threatened with arrest or harassed by law enforcement officials
for attempting to display and sell their creations in public spaces in
the City without a general vendors license. Some have had their art work
confiscated and damaged. At least one asserts a desire to sell and display
her art on the sidewalks of New York but has not done so for fear of arrest
and destruction of her work.
The Bery appellants commenced their action on June 9, 1994, with the filing
of a summons and complaint. The Lederman complaint was filed on October
5, 1994. Both sets of plaintiffs subsequently moved for a temporary restraining
order and preliminary injunction. On October 24, 1995, the district court
issued its memorandum and order jointly denying the motions for preliminary
injunction in both actions, and on October 26, 1995, filed an amended
opinion reported at 906 F. Supp. 163. By order of this court dated December
13, 1995, the actions were consolidated on appeal.
The General Vendors Law contains regulatory provisions concerning the
sale or offering for sale of non-food goods and services in public spaces
in the City of New York. Pursuant to [[section]] 20-452(b)
of the Administrative Code of the City of New York ("Administrative
Code"), a person who "hawks, peddles, sells, leases or offers
to sell or lease, at retail, [non-food] goods or services. . .
in a public space" is a general vendor. Public space is defined as
"[a]ll publicly owned property between the property lines
on a street as such property lines are shown on the City Record including
. . . a park, plaza, roadway, shoulder, tree space, sidewalk or parking
space between such property lines. . . . [as well as] publicly
owned or leased land, buildings, piers, wharfs, stadiums and terminals."
Administrative Code [[section]] 20-452(d).
At issue in the present case is [[section]] 20-453 of
the General Vendors Law, a provision which initially required a license
for all general vendors who sought to sell non-food goods or services
in public spaces in the City. In 1982, Local Law 33 was enacted amending
[[section]] 20-453 to exempt from the licensing requirement
vendors of newspapers, books and other written matter. L.L. 33/1982. In
enacting the amendment, the City Council described the new provision as
consonant with the "principles of free speech and freedom of the
at [[section]]1. In 1979, [[section]]
20-459(a) of the Administrative Code was amended by Local Law 50 to limit
the total number of licenses in effect at any given time to the number
of licenses in effect on September 1, 1979. L.L. 50/1979. The number at
that time was 853. However, that limitation rests on a slippery slope,
since any veteran who qualifies for a vending license must be issued one.
New York State General Business Law [[section]] 32 (McKinney
1994). As of the present, 340 such licenses over and above the 853 cut-off
number have been issued to veterans, making a total of 1,193 general vendors
licenses in effect.
Violators of the licensing requirement are guilty of a misdemeanor punishable
by fine and/or imprisonment and civil penalties. See
Administrative Code [[section]] 20-472(a) and (c)(1).
If criminally convicted, the violator is subject to a fine of not less
than $250 nor more than $1000 and/or imprisonment of up to three months.
Administrative Code [[section]] 20-472(a). If found civilly
liable, the violator may be fined not less than $250 nor more than $1000,
together with a fine of $250 for each day of the unlicensed activity.
Administrative Code [[section]] 20-472(c)(1). In addition,
police officers are authorized to seize the items being sold and the seized
items are subject to forfeiture. Administrative Code [[section]][[section]]
20-468 and 20-472(a).
Administrative Code [[section]][[section]]
20-465(a), (b), (e), (f), (k), (m), (n), and (q) restrict the placement,
location and size of vending displays and prohibit vending where an authorized
city employee has given notice that exigent circumstances require the
vendor to move. These regulations are applicable to all general vendors,
including vendors of exclusively written matter. Vending, except for written
matter, in a park is barred without written authorization from the Department
of Parks and Recreation, Administrative Code [[section]]
20-465(j); it is also banned from certain commercial zoning districts
and in a delineated section of midtown Manhattan. Administrative Code
District Court's Determination
The district court denied appellants' motions for preliminary injunctions,
dealing with both motions in a joint decision issued in amended form on
October 26, 1995. See
Bery v. City of New York,
906 F. Supp. 163 (S.D.N.Y. 1995) (Cedarbaum, J.). The court ruled that
the General Vendors Law was a content-neutral municipal ordinance of general
application which violated neither the First nor the Fourteenth Amendment,
although its incidental effect was to restrict the sale of art on the
sidewalks of New York. The limitation of 853 licenses in effect at a given
time, a waiting list of between 500 and 5,000 applicants, a waiting time
of between 3-5 years to secure a license and the absence of
any of the appellants' names on the waiting list did not cause the
court to modify this conclusion.
Stating that "[t]he precise nature of First Amendment protection
for painting and sculpture with no verbal elements has not been addressed
by the federal courts," the district court likened appellants'
"fine art" to "applied or decorative art" and found
that it rated only limited constitutional protection, in the absence of
evidence of government censorship. The court found neither censorship
nor animus towards artists as a motivation behind the enactment of the
ordinance by the City Council. It thus deemed the ordinance content-neutral
and subjected it to a more lenient level of scrutiny than would have been
required had it been content-based. Id.
Applying the standard enunciated in United
States v. O'Brien,
391 U.S. 367, 376-77 (1968), the court found the provision furthered a
public interest unrelated to the suppression of free speech that would
be achieved less effectively absent the regulation. Id.
The prohibition on the sale of art on the streets without a general vendors
license, the court found, was appropriately designed to deal with the
problem of street congestion. Id.
The court did not address the question of whether alternative channels
of expression remained open to appellants.
The court reasoned that words expressing "political or religious
views are much closer to the heartland of First Amendment protection of
'speech' than the apolitical paintings in these cases." Id.
at 169. Based on this premise, the court found the City's exemption
of the sellers of written matter from the licensing requirement a rational
determination consonant with the requisites of the Equal Protection Clause
of the Fourteenth Amendment. Id.
at 170. Thus, the court denied appellants' motions for a preliminary
injunction on both First Amendment and Equal Protection grounds. Id.
This court reviews the district court's denial of appellants'
preliminary injunction motions with an abuse of discretion standard. Reuters
Ltd. v. United Press Int'l, Inc.,
903 F.2d 904, 907 (2d Cir. 1990). "An abuse of discretion exists
when the district court has made an error of law or of fact." Id.
(citations omitted). In the present case, since appellants seek vindication
of rights protected under the First Amendment, we are required to make
an independent examination of the record as a whole without deference
to the factual findings of the trial court. Bose
Corp. v. Consumers Union of United States,
466 U.S. 485, 499 (1984); Hurley
v. Irish-American Gay, Lesbian and Bisexual Group of Boston,
__U.S.__, 115 S. Ct. 2338, 2344 (1995). Such a "fresh examination
of crucial facts" is necessary even in the face of the "clearly
erroneous" standard of factual review set forth in Rule 52(a), F.R.
Civ. P. Hurley,
115 S. Ct. at 2344.
In order to justify the award of a preliminary injunction, the moving
party must first demonstrate that it is likely to suffer irreparable harm
in the absence of the requested relief. Sperry
Int'l Trade, Inc. v. Government of Israel,
670 F.2d 8, 11 (2d Cir. 1982). Violations of First Amendment rights are
commonly considered irreparable injuries for the purposes of a preliminary
injunction. See, e.g.,
Elrod v. Burns,
427 U.S. 347, 373 (1976) ("[t]he loss of First Amendment
freedoms, for even minimal periods of time, unquestionably constitutes
irreparable injury"); 11A Charles A. Wright, Arthur R. Miller and
Mary Kane, Federal Practice
and Procedure, [[section]]
2948.1 at 161 (2d ed. 1995) ("[w]hen an alleged deprivation
of a constitutional right is involved, most courts hold that no further
showing of irreparable injury is necessary"). By the very nature
of their allegations, then, appellants have met the first prong of the
Ordinarily, the movant then has two options: it must either demonstrate
a likelihood of success on the merits or it must raise "sufficiently
serious questions going to the merits to make them a fair ground for litigation
and a balance of hardships tipping decidedly toward the party requesting
the preliminary relief." Sperry
Int'l Trade, Inc.,
670 F.2d at 11, citing Jackson
Dairy, Inc. v. H.P. Hood & Sons, Inc.,
596 F.2d 70, 72 (2d Cir. 1979) (per curiam). However, in a case in which
"the moving party seeks to stay governmental action taken in the
public interest pursuant to a statutory or regulatory scheme," the
injunction should be granted only if the moving party meets the more rigorous
likelihood-of-success standard. Plaza
Health Laboratories, Inc. v. Perales,
878 F.2d 577, 580 (2d Cir. 1989).
Initially, we note that the district court's view of the reach of
the First Amendment is more restricted than the jurisprudence warrants.
The First Amendment shields more than political speech and verbal expression;
its protections extend to entertainment, Winters
v. New York, 333 U.S. 507,
510 (1948); film, Joseph
Burstyn, Inc. v. Wilson,
343 U.S. 495, 501-02 (1952); theater, Southeastern
Promotions, Ltd. v. Conrad,
420 U.S. 546 (1975); music, without regard to words, Ward
v. Rock Against Racism,
491 U.S. 781, 790 (1989); peaceful marches to express grievances to governmental
authorities, Gregory v.
Chicago, 394 U.S. 111,
112 (1969), Shuttlesworth
v. Birmingham, 394 U.S.
147, 152 (1969); sit-ins by blacks to protest racial discrimination, Brown
v. Louisiana, 383 U.S.
131, 141-42 (1966); the wearing of black arm bands to evidence disapproval
of our involvement in Vietnam, Tinker
v. Des Moines Independent Community School District,
393 U.S. 503, 505 (1969); the refusal to salute the flag as part of a
regularized school activity, West
Virginia State Board of Education v. Barnette,
319 U.S. 624, 632 (1943); and most recently, parades with or without banners
or written messages, Hurley,
115 S. Ct. at 2345. "[T]he Constitution looks beyond written
or spoken words as mediums of expression." Hurley,
115 S. Ct. at 2345. If the First Amendment reached only "expressions
conveying a 'particularized message,'" its "protection
would never reach the unquestionably shielded painting of Jackson Pollock,
music of Arnold Schönberg, or Jabberwocky verse of Lewis Carroll."
at 2345 (quoting from Spence
v. Washington, 418 U.S.
405, 411 (1974)(per curiam).
The First Amendment has surely been valued as essential to the preservation
of a political democracy in this country; thus, even the pamphleteer espousing
political sedition has been shielded from governmental suppression. See,
v. California, 274 U.S.
357, 376 (1927) (Brandeis, J., concurring) ("even advocacy of violation
[of the law], however reprehensible morally, is not a justification
for denying free speech where the advocacy falls short of incitement and
there is nothing to indicate that the advocacy would be immediately acted
on"). The First Amendment's fundamental purpose, however, is
to protect all forms of peaceful expression in all of its myriad manifestations.
Abood v. Detroit Board of
Education, 431 U.S. 209,
231 (1977) ("[i]t is no doubt true that a central purpose
of the First Amendment '"was to protect the free discussion of
governmental affairs."' (citations omitted). But our cases have
never suggested that expression about philosophical, social, artistic,
economic, literary or ethical matters . . . is not entitled to full First
Amendment protection") (footnote omitted). See
also Joseph Burstyn,Inc.,
343 U.S. at 501 (motion pictures are fully protected expression that "may
affect public attitudes and behavior in a variety of ways, ranging from
direct espousal of a political or social doctrine to the subtle shaping
of thought which characterizes all artistic expression").
The district court viewed the First Amendment's primary function as
safeguarding the free flow of political and religious views, and hence
felt sanguine about the ordinance's interference with appellants'
"wish to sell their apolitical paintings." Bery,
906 F. Supp. at 170. The City apparently looks upon visual art as mere
"merchandise" lacking in communicative concepts or ideas. Both
the court and the City demonstrate an unduly restricted view of the First
Amendment and of visual art itself. Such myopic vision not only overlooks
case law central to First Amendment jurisprudence but fundamentally misperceives
the essence of visual communication and artistic expression. Visual art
is as wide ranging in its depiction of ideas, concepts and emotions as
any book, treatise, pamphlet or other writing, and is similarly entitled
to full First Amendment protection. Indeed, written language
is far more constricting because of its many variants--English, Japanese,
Arabic, Hebrew, Wolof, Guarani, etc.--among and
within each group and because some within each language group are illiterate
and cannot comprehend their own written language. The ideas and concepts
embodied in visual art have the power to transcend these language limitations
and reach beyond a particular language group to both the educated and
the illiterate. As the Supreme Court has reminded us, visual images are
"a primitive but effective way of communicating ideas. . . a short
cut from mind to mind." West
Virginia State Board of Education,
319 U.S. at 632. Visual images and symbols, for example, are used in the
Third World so that individuals who are unable to read may readily recognize
the party or candidate they wish to vote for. One cannot look at Winslow
Homer's paintings on the Civil War without seeing, in his depictions
of the boredom and hardship of the individual soldier, expressions of
anti-war sentiments, the idea that war is not heroic.
Furthermore, written and visual expression do not always allow for neat
separation: words may form part of a work of art, and images may convey
messages and stories. As appellants point out, Chinese characters are
both narrative and pictorial representations. Nahuatl, a language used
by Aztec peoples in Central America, also incorporates pictures in its
written language. Visual artwork is as much an embodiment of the artist's
expression as is a written text, and the two cannot always be readily
The City argues that appellants' "expression" allegedly
impinged by the Regulation is not in fact their art, but their peddling
of the art. It argues that the sale of art is conduct, and in order to
be constitutionally protected, the sale of protected material must be
"inseparably intertwined with a 'particularized message.'"
Young v. New York City Transit
Authority, 903 F.2d 146,
153 (2d Cir.), quoting Spence,
418 U.S. at 410-11, cert.
498 U.S. 984 (1990). The City further argues that appellants are free
to display their artwork publicly without a license, they simply cannot
These arguments must fail. The sale of protected materials is also protected.
Lakewood v. Plain Dealer
Pub. Co., 486 U.S. 750,
756 n.5 & 768 (1988). "It is well settled that a speaker's
rights are not lost merely because compensation is received; a speaker
is no less a speaker because he or she is paid to speak." Riley
v. Nat'l Fed'n of Blind of North Carolina,
487 U.S. 781, 801 (1988). In United
States v. Nat'l Treasury Employees Union,
115 S. Ct. 1003 (1995), the United States Supreme Court found that a ban
on honoraria for government employees "imposes the kind of burden
that abridges speech under the First Amendment," in part because
"the denial of compensation for lower-paid, nonpolicymaking employees
will inevitably diminish their expressive output" and will "impose
a significant burden on the public's right to read and hear what the
employees would otherwise have written and said." Id.
at 1014-15. As in the present case, without the money, the plaintiffs
would not have engaged in the protected expressive activity.
Furthermore, the street marketing is in fact a part of the message of
appellants' art. As they note in their submissions to the court, they
believe that art should be available to the public. Anyone, not just the
wealthy, should be able to view it and to buy it. Artists are part of
the "real" world; they struggle to make a living and interact
with their environments. The sale of art in public places conveys these
The district court seems to have equated the visual expression involved
in these cases with the crafts of the jeweler, the potter and the silversmith
who seek to sell their work. Bery,
906 F. Supp. at 167. While these objects may at times have expressive
content, paintings, photographs, prints and sculptures, such as those
appellants seek to display and sell in public areas of the City, always
communicate some idea or concept to those who view it, and as such are
entitled to full First Amendment protection. Courts must determine what
constitutes expression within the ambit of the First Amendment and what
does not. This surely will prove difficult at times, but that difficulty
does not warrant placing all visual expression in limbo outside the reach
of the First Amendment's protective arm. Courts have struggled with
such issues in the past; that is not to say that decisions are impossible.
Dallas v. Stanglin,
490 U.S. 19, 24-25 (1989) (social dance distinguished from expressive
dance); Yurkew v. Sinclair,
495 F. Supp. 1248, 1253 (D. Minn. 1980) ("[w]herever the
amorphous line of demarcation exists between protected and unprotected
conduct for First Amendment purposes, . . . tattooing falls on the unprotected
side of the line"). Furthermore, simply because the matter does not
lend itself to judicial determination does not mean that it is not appropriate
for local lawmakers and governmental bodies such as the City to tackle.
Having determined that appellants' artwork is entitled to full First
Amendment protection, we turn now to an application of the appropriate
constitutional test. In examining the constitutionality of a regulation
that impinges on First Amendment activity, courts will apply a strict
scrutiny analysis when the regulation discriminates on the basis of content,
and a more lenient analysis to content-neutral regulations. Turner
Broadcasting System, Inc. v. Federal Communications Comm'n,
, 114 S. Ct. 2445, 2469
The district court labelled the ordinance content-neutral, since it raised
no concerns over censorship. It is not clear that this ordinance is content-neutral,
however; it distinguishes between written and visual expression in a manner
that effectively bans one while subjecting the other to a more limited
form of regulation. See,
Star & Tribune Co. v. Minnesota Commissioner of Revenue,
460 U.S. 575, 592-93 (1983) (law that "targets individual publications
within the press" must surmount a heavy burden to satisfy First Amendment
strictures); Buckley v.
Valeo, 424 U.S. 1, 18 (1976)(only
regulations which do not discriminate among speakers or ideas are content-neutral).
The ordinance's effective bar on the sale of artwork in public places
raises concerns that an entire medium of expression is being lost. See,
of Ladue v. Gilleo, 512
U.S. 43 (1994); United States
v. National Treasury Employees Union,
115 S. Ct. 1003 (1995). We need not decide that issue, however, since
the ordinance must fall even under the less restrictive yardstick the
A content-neutral regulation may restrict the time, place, and manner
of protected speech, provided it is "narrowly tailored to serve a
significant governmental interest" and "leave[s] open
ample alternative channels for communication." Ward,
491 U.S. at 791, quoting Clark
v. Community for Creative Non-Violence,
468 U.S. 288, 293 (1984). The City certainly has a significant interest
in keeping its public spaces safe and free of congestion. The license
requirement as it relates to appellants, however, which effectively bars
them from displaying or selling their art on the streets, is too sweeping
to pass constitutional muster. See,
v. Discovery Network, Inc.,
507 U.S. 410, 429-30 (1993). The district court's failure to properly
analyze the questions of narrow tailoring and alternative channels was
an abuse of discretion that led to an incorrect result.
The ordinance is a de facto
bar preventing visual artists from exhibiting and selling their art in
public areas in New York. The total number of licenses outstanding at
any given time is a low 853. Those fortunate enough to possess one of
these permits may automatically renew it annually which, of course, means
that late-comers like appellants have little hope of securing a license
in the foreseeable future. In addition to this all-but-impenetrable barrier,
a 500-to-5000 person waiting list makes appellants' prospects of securing
a license apparently nonexistent, a fact conceded at oral argument.
The City may enforce narrowly designed restrictions as to where appellants
may exhibit their works in order to keep the sidewalks free of congestion
and to ensure free and safe public passage on the streets, but it cannot
bar an entire category of expression to accomplish this accepted objective
when more narrowly drawn regulations will suffice. The City points to
nothing on this record concerning its need to ensure street safety and
lack of congestion that would justify the imposition of the instant prohibitive
interdiction barring the display and sale of visual art on the City streets.
Wright v. Chief of Transit
Police, 558 F.2d 67, 68-69
(2d Cir. 1977) (city must find less restrictive alternative than complete
ban on newspaper vending in subways); Loper
v. New York City Police Dep't,
999 F.2d 699, 704-05 (2d Cir. 1993)(street begging constitutes expressive
conduct which cannot be totally barred without unconstitutional interference
with First Amendment rights.)
This is not to say that the display of large, cumbersome works that would
block public traverse on the streets may not be subjected to discrete
regulation as to time, place and location or indeed that both visual and
written expression may not be so restricted by regulations addressed to
particular areas of the City where public congestion might create physical
hazards and public chaos. For example, requiring a license for a parade,
Cox v. New Hampshire,
312 U.S. 569, 574 (1941), or for a vending machine, City
of Lakewood, 486 U.S. at
760, or restricting the right to distribute newspapers through newsracks
on public property not traditionally a place for public communication,
Gannett Satellite Information
Network v. Metropolitan Transportation Authority,
745 F.2d 767, 772 (2d Cir. 1984), are all valid exercises of state police
power to control time, place and manner of public access to public spaces.
The ordinance as it stands, however, cannot be considered merely a regulation
designed for crowd management and control, or to prevent congestion or
to keep the streets clear to allow unimpeded passage of the public over
the City's thoroughfares. There exist specific sections of the Administrative
Code which directly regulate time, place, manner and location of vending
that already achieve these ends without such a drastic effect. See,
e.g., Administrative Code
[[section]] 20-465. Furthermore, the City's licensing
exceptions for veterans and vendors of written material call into question
the City's argument that the regulation is narrowly tailored. The
City does not maintain control over the absolute number of vendors, since
the exceptions are unlimited; the number 853 does not in and of itself
control congestion. The City's control over congestion is largely
maintained through the time, place and manner restrictions on vending
that facilitate the flow of traffic, ease crowding and improve safety.
We turn now to a consideration of whether alternative channels of communication
exist for appellants' protected expression. Appellants argue that
no such alternatives exist. They contend that licenses are virtually impossible
to obtain, and no other forum exists for the display of art by appellants,
since museum and gallery space in New York City is drastically limited.
The City states that alternatives exist; appellants may sell their artwork
from their homes or seek permission to display it in restaurants and street
fairs and the like. However, appellants are entitled to a public
forum for their expressive activities. Southeastern
Promotions Ltd., 420 U.S.
at 556 (1975); Gold Coast
Pub., Inc. v. Corrigan,
798 F. Supp. 1558, 1572 (S.D. Fla. 1992), aff'd
in part, rev'd in part on other grounds,
42 F.3d 1336 (11th Cir. 1994), cert.
___ U.S. ___, 116 S. Ct. 337 (1995). Displaying art on the street has
a different expressive purpose than gallery or museum shows; it reaches
people who might not choose to go into a gallery or museum or who might
feel excluded or alienated from these forums. The public display and sale
of artwork is a form of communication between the artist and the public
not possible in the enclosed, separated spaces of galleries and museums.
Furthermore, to tell appellants that they are free to sell their work
in galleries is no remedy for them. They might not be at a point in their
careers in which they are interested in reaching the public that attends
exhibits at art galleries--if, indeed, they could get their works accepted
for showing. Appellants are interested in attracting and communicating
with the man or woman on the street who may never have been to a gallery
and indeed who might never have thought before of possessing a piece of
art until induced to do so on seeing appellants' works. The sidewalks
of the City must be available for appellants to reach their public audience.
The City has thus failed to meet the requirement of demonstrating alternative
channels for appellants' expression.
On the basis of this record before us, the City's requirement that
appellants be licensed in order to sell their artwork in public spaces
constitutes an unconstitutional infringement of their First Amendment
rights. The district court abused its discretion in denying the preliminary
Finally, we note that the district court was similarly incorrect in its
rejection of appellants' argument under the Equal Protection Clause
of the Fourteenth Amendment. The requirement that appellants' art
cannot be sold or distributed in public areas without a general vendors
license, while written material may be sold and distributed without a
license, must fall for the same reasons outlined above. Since the ordinance
does impermissibly impinge on a fundamental right, the district court
incorrectly dismissed the equal protection argument under a rational basis
Accordingly, the judgment of the district court is reversed.
11 Honorable Robert L. Carter of the United States District
Court for the Southern District of New York, sitting by designation.
2 It is not clear whether
this is the delay anticipated to receive a license or merely to be placed
on the waiting list.
3 Serra v. U.S.
General Services Admin.,
847 F.2d 1045 (2d Cir. 1988) does not compel a different holding. In Serra,
this court held that "artwork, like other non-verbal forms of expression,
may under some circumstances constitute speech for First Amendment purposes."
at 1048. The court did not actually reach the question of the level of
constitutional protection in artwork, however, since it found that "the
First Amendment has only limited application in a case like the present
one where the artistic expression belongs to the Government rather than
a private individual." Id.
4 A language written
and spoken in the Senegambia region of West Africa.
5 A language used by both indigenous and non-indigenous peoples
6 The City proves itself ready to undertake the similarly difficult
task of separating written from non-written materials. (See
Aff. in Support of Cross-Motion for Summary J. at 2-3, reprinted in Joint
Appendix at 196-97: e.g.,
baseball cards are written material, calendars and street maps are not.)
There already exists in city ordinances a definition of "artist"
that might serve as a helpful starting point: the New York Multiple
Dwelling Law, Section 276 defines "artist" for the purpose of
determining eligibility for living-work quarters earmarked for
 7 Richard Schrader, former Commissioner of the City's
Department of Consumer Affairs, the department which creates policy regarding
licensing of general vendors, states that in an average year 15% of
the 853 licenses become available due to previous holders' failure
to renew, the only manner in which a license becomes available. (Joint
Appendix at 221). In 1990 and in 1991, no licenses were available. In
1993, the discovery of a bookkeeping error revealed that 553 rather than
853 licenses were outstanding. The Department distributed 100 licenses
to individuals on the waiting list and issued 200 more by lottery. This
is the only occasion when licenses have been awarded in this manner. Aside
from this, "no new licenses were issued in the past fifteen years,"
and based on Schrader's "extensive experience and knowledge,"
he has "never learned of an artist being licensed to sell art work."
(Joint Appendix at 221-223).
8 Even if the City were to adhere to a licensing system to
regulate street art sales, there exist less intrusive means of issuing
the licenses: one amicus
suggests a rotating first-come, first-served lottery system for assigning
a limited number of licenses. (Brf. amici
curiae of the American
Civil Liberties Union et
al. at 26-27). The system
employed by San Francisco might provide a model: certain areas are set
aside for art sales and a weekly lottery assigns spots. (Joint Appendix
at 313-14, 351). The district court made no mention of these potential