City of New Orleans v. Lawrence Clark , 251 So. 3d 1047 ( 2018 )

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #040
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 7th day of September, 2018, are as follows:
BY CLARK, J.:
2017-KK-1453 CITY OF NEW ORLEANS v. LAWRENCE CLARK (Parish of Orleans)
Defendant, Lawrence Clark, was issued a citation for displaying
his art for sale on the neutral ground at Decatur Street and
Esplanade Avenue in New Orleans, in violation of New Orleans
Municipal Code §110 -11. Mr. Clark moved to quash the charging
affidavit, asserting the ordinance is unconstitutional. We
granted this writ application to consider whether New Orleans
Municipal Code §110 -11, which regulates the outdoor retail sale
of art, is unconstitutional as a violation of Mr. Clark’s First
Amendment rights. For the following reasons, we find the
ordinance is unconstitutional. Therefore, we reverse the lower
courts’ rulings and grant the motion to quash the charging
affidavit against Mr. Clark.
REVERSED; MOTION TO QUASH GRANTED
JOHNSON, C.J., dissents and assigns reasons.
HUGHES, J., dissents for the reasons assigned by Johnson, C.J.
09/07/18
SUPREME COURT OF LOUISIANA
No. 2017-KK-1453
CITY OF NEW ORLEANS
VERSUS
LAWRENCE CLARK
ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT
COURT FOR THE PARISH OF ORLEANS
CLARK, Justice
Defendant, Lawrence Clark, was issued a citation for displaying his art for
sale on the neutral ground at Decatur Street and Esplanade Avenue in New Orleans,
in violation of New Orleans Municipal Code §110 -11. Mr. Clark moved to quash
the charging affidavit, asserting the ordinance is unconstitutional. We granted this
writ application to consider whether New Orleans Municipal Code §110 -11, which
regulates the outdoor retail sale of art, is unconstitutional as a violation of Mr.
Clark’s First Amendment rights. For the following reasons, we find the ordinance
is unconstitutional. Therefore, we reverse the lower courts’ rulings and grant the
motion to quash the charging affidavit against Mr. Clark.
FACTS AND PROCEDURAL HISTORY
On March 22, 2016, Mr. Clark was issued a citation as a prohibited vendor
for violating Municipal Code §110 -11. The citing officer wrote on the citation “art
on display table; display on the neutral ground at Decatur & Esplanade.” Mr. Clark
filed a motion to quash the charging affidavit and to declare Municipal Code §110 -
11 unconstitutional, asserting it infringes upon his First Amendment right of
1
expression.1 Following a hearing in New Orleans Municipal Court, the judge denied
defendant’s motion to quash. Defendant sought review from the Criminal District
Court for the Parish of Orleans. The Appellate Division of Criminal District Court
affirmed the ruling, finding no abuse of discretion in the municipal court’s ruling.
Subsequently, the court of appeal granted defendant’s writ and vacated the lower
courts’ judgments, finding the issue of the constitutionality of the ordinance was not
properly before the lower courts, because the attorney general had not been properly
notified and served. City of New Orleans v. Clark, 16-K-0838 (La. App. 4 Cir.
9/22/16).
Following proper service on the attorney general, defendant reasserted his
motion to quash, which was again denied by the municipal court judge. The
Appellate Division of Criminal District Court affirmed the ruling, finding the
restrictions imposed by the ordinance to be reasonable and constitutional. The court
of appeal then denied defendant’s writ application, finding the motion to quash
“meritless.” City of New Orleans v. Clark, 17-K-0563 (La. App. 4 Cir. 7/31/17). On
defendant’s application, we granted supervisory review. City of New Orleans v.
Clark, 17-1453 (La. 12/5/17), 231 So. 3d 625.
DISCUSSION
The New Orleans Municipal Code regulates outdoor retail sales conducted on
city property. In general, Section 110-11, entitled “Prohibited street vendors,”
provides:
(a) It shall be unlawful for any person to engage in any retail sales or
permit any displays, signs, or advertisements for retail sales outside of
1
Louisiana C.Cr.P. art. 532 provides in relevant part: “A motion to quash may be based on one or
more of the following grounds: (1) The indictment fails to charge an offense which is punishable
under a valid statute.”
2
any enclosed building within the city, unless expressly provided in
another section of the Code of the City of New Orleans.
(b) Whoever violates the provisions of this section shall be punished
by a fine not exceeding $500.00 or by imprisonment for not more than
six months, or both such fine and imprisonment.
Pursuant to the directive of subsection (a), the Municipal Code expressly provides
for the sale of art in other sections. See New Orleans, La., Municipal Code §§ 110-
121 to 110-132. Specifically, through a series of ordinances, the City of New
Orleans provides a permitting process that allows artists to sell their work in certain
defined areas: an “A” permit allows the “permittee to paint and sell original works
of art in that area defined as ‘the Jackson Square setup area.’” New Orleans, La.,
Municipal Code § 110-121(d). The Jackson Square setup area” is defined as “a) the
area extending 20 feet from the Jackson Square fence on St. Peter Street; b) the area
extending 20 feet from the Jackson Square fence on Chartres Street; c) the area
extending 20 feet from the Jackson Square fence on St. Ann Street; and d) the area
extending five feet from the Jackson Square fence on Decatur Street.” New Orleans,
La., Municipal Code § 110-121(b). A “B” permit allows artists to “paint and sell
works of art in that area defined as the ‘vicinity of Jackson Square.’” New Orleans,
La., Municipal Code § 110-121(e). “‘Vicinity of Jackson Square’ means Pirates
Alley and that area of Royal Street bounded by Pirates Alley and Pere Antoine
Alley.” New Orleans, La., Municipal Code § 110-121(f). Artists holding “A” or
“B” permits can also apply to the French Market Corporation “for permission to
manually paint, sketch or draw on plain surfaces only” within the French Market
promenades and parks. New Orleans, La., Municipal Code § 110-130. In addition
to the explicit provision for “A” and “B” permits in the ordinances, the City of New
Orleans also provides for an artist “C” license for the sale of art in Edison Park,
located off of Bourbon Street in the French Quarter. Although “C” permits are not
specifically described in the Municipal Code, the City provides for type “C” permits
3
(Edison Park) in its master application for occupations/general business license. The
parties do not dispute the availability of this type of permit. The Municipal Code
provides that “A” permits are limited to 200, but provides no cap for “B” or “C”
permits. New Orleans, La., Municipal Code § 110-127.
Mr. Clark argues the cumulative effect of these ordinances (collectively, “the
ordinance”) is a blanket prohibition on the outdoor sale of art in New Orleans other
than in these narrowly defined spaces in the French Quarter. He argues this
sweeping ban on a core form of artistic expression violates the fundamental free
speech guarantees of the First Amendment of the United States Constitution and
Article I, Section 7, of the Louisiana Constitution. By contrast, the State of
Louisiana and the City of New Orleans (collectively, “the City”) argue the ordinance
sets forth constitutional regulations on commercial speech. The City also argues the
regulations are constitutionally permissible as time, place, and manner regulations
on speech.
The determination of the constitutionality of a statute presents a question of
law, which is reviewed by this court de novo. State v. Webb, 13-1681 (La. 5/7/14),
144 So. 3d 971, 975. “This court interprets a municipal or City ordinance using the
same guidelines as those used in construing a statute. An ordinance, like a state
statute, is presumed to be constitutional. Whoever attacks the constitutionality of an
ordinance bears the burden of proving his allegation.” Rand v. City of New Orleans,
17-0596 (La. 12/6/17), 235 So. 3d 1077, 1082 (internal citations removed).
The First Amendment prohibits the enactment of laws “abridging the freedom
of speech.” U.S. Const., amend. I. 2 In a series of decisions beginning with Gitlow
v. New York, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925), the Supreme Court
2
Similarly, the Louisiana Constitution provides in relevant part: “No law shall curtail or restrain
the freedom of speech or of the press. Every person may speak, write, and publish his sentiments
on any subject, but is responsible for abuse of that freedom.” La. Const. Ann. art. I, § 7.
4
has held and reaffirmed “that the liberty of speech … which the First Amendment
guarantees against abridgment by the federal government is within the liberty
safeguarded by the Due Process Clause of the Fourteenth Amendment from invasion
by state action.” First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 779, 98 S. Ct.
1407, 55 L. Ed. 2d 707 (1978) (citing Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495,
500-01, 72 S. Ct. 777, 96 L. Ed. 1098 (1952)). The Supreme Court has further stated
that the Constitution looks beyond written or spoken words as mediums of
expression:
Noting that symbolism is a primitive but effective way of
communicating ideas, our cases have recognized that the First
Amendment shields such acts as saluting a flag (and refusing to do so),
wearing an armband to protest a war, displaying a red flag, and even
marching, walking or parading in uniforms displaying the swastika. As
some of these examples show, a narrow, succinctly articulable message
is not a condition of constitutional protection, which if confined to
expressions conveying a “particularized message,” would never reach
the unquestionably shielded painting of Jackson Pollock, music of
Arnold Schöenberg, or Jabberwocky verse of Lewis Carroll.
Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 569, 115
S. Ct. 2338, 132 L. Ed. 487 (1995) (internal quotes and citations removed). It is
undisputed that the speech or expression involved in this case is protected by the
First Amendment. Although the factual record is limited, based on the summons
issued to Mr. Clark and the contentions of the parties, it is apparent that Mr. Clark
was selling his artwork from a display table on the neutral ground at Esplanade
Avenue and Decatur Street in New Orleans. “It goes without saying that artistic
expression lies within this First Amendment protection.” Nat’l Endowment for the
Arts v. Finley, 524 U.S. 569, 602, 118 S. Ct. 2168, 141 L. Ed. 2d 500 (1998).
Moreover, the fact that Mr. Clark was selling his art for profit does not change
the First Amendment analysis. “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
5
or she is paid to speak.” Riley v. National Fed’n of the Blind of N.C., Inc., 487 U.S.
781, 801, 108 S. Ct. 2667, 101 L. Ed. 2d 669 (1988). Speech is protected even though
it is carried in a form that is sold for profit and even though it may involve a
solicitation to purchase. Virginia State Bd. of Pharmacy v. Virginia Citizens
Consumer Council, Inc., 425 U.S. 748, 761, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976).
Thus, contrary to the City’s assertion, we do not find Mr. Clark’s action of selling
his artwork to be commercial speech. Commercial speech is defined as speech that
solely proposes a commercial transaction, not speech for profit. Bd. Of Trustees of
State Univ. of New York v. Fox, 492 U.S. 469, 482, 109 S. Ct. 3028, 106 L. Ed. 2d
388 (1989); Virginia Pharmacy Board, 425 U.S. at 761. 3 There is nothing in the
record to suggest Mr. Clark’s work proposed a commercial transaction. Rather, he
was selling his artwork for profit.
The application of the ordinance to Mr. Clark’s expressive activity
undoubtedly raises the question of whether the ordinance abridges his freedom of
speech and expression within the meaning of the First Amendment. However, the
fact that the ordinance presents a First Amendment issue does not necessarily mean
it constitutes a First Amendment violation. See Members of the City Council of City
of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 808-04, 104 S. Ct. 2118, 80
L. Ed. 2d 772 (1984). The Supreme Court has explained:
To ascertain what limits, if any, may be placed on protected speech, we
have often focused on the “place” of that speech, considering the nature
of the forum the speaker seeks to employ. Our cases have recognized
that the standards by which limitations on speech must be evaluated
differ depending on the character of the property at issue. Specifically,
we have identified three types of fora: the traditional public forum, the
public forum created by government designation, and the nonpublic
forum.
3
Designating speech as commercial or non-commercial is not necessarily outcome determinative.
Even pure commercial speech is entitled to significant First Amendment protection. See City of
Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 423, 113 S. Ct. 1505, 123 L. Ed. 2d 99 (1993).
6
Frisby v. Schultz, 487 U.S. 474, 479-80, 108 S. Ct. 2495, 101 L. Ed. 2d 420 (1988)
(internal citations removed). Public places historically associated with the free
exercise of expressive activities, such as streets, sidewalks, and parks, are generally
considered to be traditional public forums. See United States v. Grace, 461 U.S.
177, 103 S. Ct. 1702, 75 L. Ed. 2d 736 (1983). We recognize, and the City does not
dispute, that the neutral ground where Mr. Clark was selling his artwork is a public
forum for First Amendment purposes.
The government’s ability to prohibit expressive activity in public forums is
limited. However, it is well settled that the First Amendment does not guarantee the
right to communicate one’s views at all time and places or in any manner that may
be desired. Taxpayers for Vincent, 466 U.S. at 812 (citing Heffron v. Int’l Soc. for
Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S. Ct. 2559, 69 L. Ed. 2d 298
(1981)). The Supreme Court has long held that even in a public forum the
government may impose reasonable restrictions on the time, place, or manner of
protected speech, provided the restrictions are content neutral, narrowly tailored to
serve a significant governmental interest, and leave open ample alternative channels
for communication of the information. See, e.g., Ward v. Rock Against Racism, 491
U.S. 781, 791, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989); Clark v. Community for
Creative Non-Violence, 468 U.S. 288, 293, 104 S. Ct. 3065, 82 L. Ed. 2d 221 (1984);
Consolidated Edison Co., v. Public Serv. Comm’n, 447 U.S. 530, 535-36, 100 S. Ct.
2326, 65 L. Ed. 2d 319 (1980); see also In re Warner, 05-1303 (La. 4/17/09), 21 So.
3d 218, 244. The City’s ordinance must be examined in the context of this
framework.
The first criterion for a valid time, place, and manner restriction is that the
ordinance be “content neutral.” This determination is essential because regulations
that burden speech, but that are unrelated to the speaker’s viewpoint or to the content
7
of the speech, are subject to an intermediate level of judicial scrutiny, rather than the
strict level of scrutiny that is applicable to content based regulations that suppress,
disadvantage, or impose differential burdens on speech because of its content.
Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 642, 114 S. Ct. 2445, 129 L. Ed. 2d
497 (1994); see also, In re Warner, 21 So. 3d at 244. Strict scrutiny makes it less
likely that a regulation will clear the constitutional hurdle because the operative test
is whether a regulation “is necessary to serve a compelling state interest and is
narrowly drawn to achieve that end.” Arkansas Writers’ Project, Inc. v. Ragland,
481 U.S. 221, 231, 107 S. Ct. 1722, 95 L. Ed. 2d 209 (1987). However, under
intermediate scrutiny, the test is less exacting and requires only that the restriction
be narrowly tailored to serve a significant governmental interest, and that it leaves
open ample alternative channels for communication of the information. Community
for Creative Non-Violence, 468 U.S. at 293.
“The principal inquiry in determining content neutrality, in speech cases
generally and in time, place or manner cases in particular, is whether the government
had adopted a regulation of speech because of disagreement with the message it
conveys.” Rock Against Racism, 491 U.S. at 791 (citing Community for Creative
Non-Violence, 468 U.S. at 295). A regulation that serves purposes unrelated to the
content of expression is deemed neutral, even if it has an incidental effect on some
speakers or messages but not others. Rock Against Racism, 491 U.S. at 791. In this
case, the ordinance regulates the outdoor locations where artists can sell their
artwork. The ordinance is equally applicable to all artists, regardless of medium or
message. Thus, we find the ordinance satisfies the content neutrality requirement.
To pass constitutional muster, the ordinance must also serve a significant
governmental interest. The City asserts an interest in preserving the “tout ensemble”
of the French Quarter and advancing its substantial economic interest by promoting
8
tourism, and an interest in keeping its streets and neutral grounds open and available
for movement in a manner that advances public safety. We accept that the City has
stated a legitimate and significant interest in preserving the distinct charm, character,
and economic vitality of the French Quarter. In enacting the ordinance, the New
Orleans City Council recognized the Supreme Court’s decision in City of New
Orleans v. Dukes, which noted “[t]he Vieux Carre of the city of New Orleans is the
heart of [the] city’s considerable tourist industry and an integral component of the
city’s economy.” 427 U.S. 297, 299, 96 S. Ct. 2513, 49 L. Ed. 2d 511 (La. 1976).4
The regulation of sales of merchandise on city property within city limits is part of
a city’s traditional municipal police powers, and the City has a legitimate interest in
controlling commerce on city streets and other public property. 5 The City has made
the considered decision to promote its economy by driving outdoor art sales to the
heart of the City’s tourism industry – the French Quarter ̶ thereby “enhancing the
vital role of the French Quarter’s tourist-oriented charm in the economy of New
Orleans.” See id. at 303. We find that decision advances the City’s significant
economic and cultural preservation interests. See also, One World Family Now v.
City of Miami Beach, 175 F.3d 1282, 1288 (11th Cir. 1999) (“There is also no
question that the city’s further interest in creating an aesthetic ambiance which will
attract tourists to the historic Art Deco district – which it considers ‘the economic
lifeblood of the city’ ̶ is a substantial government interest.…”). The Supreme Court
has recognized that the government may exercise its police powers to advance
esthetic values, reasoning the “concept of public welfare is broad and inclusive. The
4
See City of New Orleans Ordinance Documents, No. 21787 M.C.S., 10/28/04.
5
Police power is the power of a governmental body to impose laws and regulations that are
reasonably related to the protection or promotion of a public good such as health, safety or
welfare. Louisiana Associated Gen. Contractors, Inc. v. Calcasieu Par. Sch. Bd., 586 So. 2d
1354, 1367 n.20 (La. 1991).
9
values it represents are spiritual as well as physical, aesthetic as well as monetary.”
Taxpayers for Vincent, 466 U.S. at 805 (internal citations removed). Further, there
is no question that “[g]overnmental authorities have the duty and responsibility to
keep their streets open and available for movement.” Cox v. Louisiana, 379 U.S.
536, 554-55, 85 S. Ct. 453, 13 L.Ed 2d 471 (1965). The neutral grounds between the
streets should be treated no differently. We find the City has the right to regulate
the use of its streets, neutral grounds, and other facilities to assure the safety and
convenience of the people in their use of the property. See Heffron, 452 U.S. at 650.
In addition to serving a significant governmental interest, the ordinance must
be narrowly tailored to serve that interest. The means chosen by the City to achieve
the desired end need not be the least intrusive or least restrictive means of doing so.
Rock Against Racism, 491 U.S. at 798. The Supreme Court has clearly held that
“restrictions on the time, place, or manner of protected speech are not invalid ‘simply
because there is some imaginable alternative that might be less burdensome on
speech.’” Id. at 797 (citing United States v. Albertini, 472 U.S. 675, 689, 105 S. Ct.
2897, 2906, 86 L. Ed. 2d 536 (1985)). Allowing some forms of expression, while
denying others, does not signify a violation of the First Amendment. See U.S. v.
Kokinda, 497 U.S. 720, 734 110 S. Ct. 3115, 111 L. Ed. 2d 571 (1990) (wherein the
Court found the activity of solicitation could be signaled out and prohibited because
of the disruption it caused). The sale of art in outdoor public spaces invites patrons
not only to observe the artwork, but also to stop for longer periods of time to conduct
a sales transaction. See, e.g., Heffron, 452 U.S. at 653 (wherein the Court recognized
a distinction between the purely communicative aspect of oral advocacy and the
solicitation of contributions, which may be more disruptive on order and crowd
flow). As the Court explained in Kokinda:
10
Solicitation impedes the normal flow of traffic. Solicitation requires
action by those who would respond: The individual solicited must
decide whether or not to contribute (which itself might involve reading
the solicitor's literature or hearing his pitch), and then, having decided
to do so, reach for a wallet, search it for money, write a check, or
produce a credit card. As residents of metropolitan areas know from
daily experience, confrontation by a person asking for money disrupts
passage and is more intrusive and intimidating than an encounter with
a person giving out information. One need not ponder the contents of a
leaflet or pamphlet in order mechanically to take it out of someone's
hand, but one must listen, comprehend, decide, and act in order to
respond to a solicitation. Solicitors can achieve their goal only by
“stopping [passersby] momentarily or for longer periods as money is
given or exchanged for literature” or other items.
497 U.S. at 733-34 (internal citations removed). The outdoor sale of art raises the
same concerns. Notably the ordinance does not purport to regulate display of art, or
other forms of communication. The act of displaying art does not require action by
anyone, whereas the sale of art requires action – someone stopping to make a
transaction. Art purchases are more time-consuming and more absorbing than
observing a display and moving on. Limiting outdoor sale of art to designated areas
of the city and prohibiting general retail sale of art on sidewalks and neutral grounds
allows drivers to have clear visuals of the roads and pedestrians without distractions
and delays, and allows for the free flow of pedestrian and vehicular traffic within the
city.
The City maintains that absent the ordinance, unlimited artists could set up
shop and conduct retail sales on the neutral grounds, sidewalks, or other public areas
throughout the city. Unquestionably, crowds of artists selling their work would
affect the City’s ability to control public safety and regulate sales on its property.
See, e.g., Community for Creative Non-Violence, 468 U.S. at 296-97; Heffron, 452
U.S. at 652-53. While the ordinance does impose some burden on speech, the
ordinance does not prohibit all speech on public property, including the neutral
ground chosen by Mr. Clark. The City asserts that restricting outdoor sales of art to
11
its highest tourism area serves its significant governmental interests of public safety
and economic benefit, and, without the regulation, it could not effectively
accomplish its goals.
Mr. Clark concedes that the City has a valid interest in regulating the conduct
of art vendors and that narrowly tailored regulations that ensure safety of drivers and
pedestrians comport with the First Amendment. However, he argues, the City has
taken no measures to tailor its regulation of the sale of art in public places such as
the neutral ground to avoid impermissibly burdening protected speech. Rather, the
City has completely banned the sale of art in every public space in New Orleans save
the Jackson Square area and Edison Park in the French Quarter.
The decision in ACORN v. City of New Orleans, 600 F. Supp. 16 (E.D.La.
1984), provides guidance on permissible regulations on speech in the neutral ground
and other public fora. In ACORN, a non-profit organization challenged a New
Orleans city ordinance that prohibited persons from standing in a roadway or on the
neutral ground for the purpose of soliciting funds. The court found the total ban on
soliciting funds in roadways or on neutral grounds to be an unconstitutional
restriction of expression and enjoined its enforcement. The court held that while the
City had a valid interest in promoting safety and convenience by enacting time,
place, and manner restrictions on expressive activity on the neutral ground, a
complete ban was overbroad. Id. at 22. Specifically, the court found the City had
not taken into account factors such as “the part of town, the number of cars passing,
the speed of traffic, the width of the neutral grounds, the presence of a stop sign or
traffic signal, or the color of the light … the number of solicitors, their visibility, the
size of their signs, the time of day or the day of the week.” Id.
The record before us indicates the City has taken no measures to tailor its
regulation of the sale of art in public places to avoid impermissibly burdening
12
protected speech. In fact, Municipal Code § 110-11 is not even limited to areas next
to roadways or solicitation of motorists. Rather, it extends to all outdoor sales to all
individuals, including pedestrians. The City could have made “an earnest attempt to
accommodate legitimate speech interests through careful drafting” by adopting “less
restrictive methods” to ensure public safety – for example, by regulating the distance
between an artist and the roadway or by prohibiting artists from distracting behavior.
See ACORN, 606 F. Supp. at 24. We find neither of the purported interests identified
by the City – public safety and economic benefit – justify the significant burden on
speech created by Municipal Code § 110-11. Both of these interests can be achieved
by far less restrictive means than the ordinance’s citywide prohibition on outdoor
sales of art, save the Jackson Square area and Edison Park in the French Quarter.
Thus, we conclude the ordinance is overly broad and not narrowly tailored to serve
the City’s substantial interests.
Furthermore, we find the ordinance does not allow ample alternative channels
for artists to communicate their message. The City’s ordinance offers no alternative
geographic channel for selling art; such sales are completely banned outside the
French Quarter.
The guarantee of the right to expression under the Louisiana Constitution
must be at least equal – if not greater – to that of the First Amendment. See State v.
Franzone, 384 So. 2d 409, 411 (La. 1980). However, owing to a ban on artistic
expression that is geographically broad in scope, there is no ample alternative
channel for artistic expression. Community for Creative Non-Violence, 468 U.S. at
293. In a city with allegiances to neighborhoods spanning generations, the people
who populate Central City, the Garden District, the Irish Channel, Broadmoor,
Hollygrove, Gert Town, Mid-City, Treme, City Park, Lakeview, Gentilly Woods,
Faubourg Marigny, St. Roch, the Lower Ninth Ward, Little Woods, Village de L’est,
13
Lake Catherine, Algiers Point and English Turn, among other neighborhoods, have
limitations imposed on their constitutionally-protected artistic expression. Thus, we
find the City’s ordinance violates the First Amendment, and the lower courts erred
by holding otherwise.
DECREE
Accordingly, we hold New Orleans Municipal Code §110-11 is
unconstitutional. We reverse the lower courts’ rulings and grant the motion to quash
the charging affidavit against Mr. Clark.
REVERSED; MOTION TO QUASH GRANTED
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09/07/18
SUPREME COURT OF LOUISIANA
No. 2017-KK-1453
CITY OF NEW ORLEANS
VERSUS
LAWRENCE CLARK
ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT
COURT FOR THE PARISH OF ORLEANS
JOHNSON, Chief Justice, dissents and assigns reasons.
I respectfully dissent because I find Municipal Code §110-11, which regulates
the outdoor retail sale of art in New Orleans, is constitutional and does not violate Mr.
Clark’s First Amendment rights.
In this case, Mr. Clark was conducting a retail sale of his artwork on public
property without a permit. There is no question that Mr. Clark’s conduct is subject to
reasonable time, place, or manner restrictions by the City. See Clark v. Cmty. for
Creative Non-Violence, 468 U.S. 288, 293, 104 S. Ct. 3065, 3069, 82 L. Ed. 2d 221
(1984). As recognized by the majority, the City’s ordinance is subject to an
intermediate level of judicial scrutiny and only requires that the restriction be
narrowly tailored to serve a significant governmental interest, and that it leaves open
ample alternative channels for communication of the information. See id. In this case,
I find the ordinance passes constitutional muster.
The Ninth Circuit’s decision in One World One Family Now v. City & Cty. of
Honolulu, 76 F.3d 1009 (9th Cir. 1996) is particularly instructive because it concerns
a city ordinance regulating sales in public places. In that case, plaintiffs, nonprofit
organizations that sold T-shirts imprinted with various philosophical and inspirational
1
messages, challenged a Honolulu ordinance which banned the sale of all “goods,
wares, merchandise, foodstuffs, refreshments or other kinds of property or services
... upon the public streets, alleys, sidewalks, malls, parks, beaches and other public
places in Waikiki.” One World One Family Now, 76 F.3d at 1011. Plaintiffs argued
their selling was constitutionally protected expression and the ordinance could not be
applied to them. The court agreed that plaintiffs’ conduct was protected by the First
Amendment. Relying on its earlier decision in Gaudiya Vaishnava Soc’y v. City and
County of San Francisco, 952 F.2d 1059 (9th Cir.1990), cert. denied, 504 U.S. 914,
112 S. Ct. 1951, 118 L. Ed. 2d 555 (1992), the court explained “that, when the sale of
merchandise bearing political, religious, philosophical or ideological messages is
‘inextricably intertwined’ with other forms of protected expression (like distributing
literature and proselytizing), the First Amendment applies.” Id. at 1012. However, the
court went on to hold the Honolulu ordinance was a valid time, place and manner
restriction and could be applied to prohibit plaintiffs’ selling of their merchandise.
The Ninth Circuit recognized that cities have a substantial interest in protecting
the aesthetic appearance of their communities by avoiding visual clutter and a
substantial interest in assuring safe and convenient circulation on their streets. Id. at
1013. The court further found that Honolulu demonstrated a substantial interest in
protecting local merchants from unfair competition. Id. The court held that the
ordinance was narrowly tailored to serve these interests because they would be
achieved less effectively absent the regulation. Id. The court noted:
Without the ordinance, sidewalk vendors (commercial and charitable
alike) would be free to peddle their wares on [the streets] undermining
the city’s efforts to provide a pleasant strolling and shopping area. A
proliferation of sidewalk vendors could also aggravate the congestion on
already crowded sidewalks and siphon off sales from local merchants.
Because the peddling ordinance addresses these problems without ...
significantly restricting a substantial quantity of speech that does not
create the same evils, [the ordinance] is narrowly tailored.
2
Id. at 1014. The court further rejected plaintiffs’ argument that Honolulu could adopt
less restrictive alternatives to advance its interests, such as limiting the number of
vendors, their hours of operation or the size and location of their stands. Id. The court
explained a “reasonable time, place and manner regulation, however, need not be the
least restrictive or least intrusive alternative. So long as the means chosen are not
substantially broader than necessary to achieve the government’s interest, ... the
regulation will not be invalid simply because a court concludes that the government’s
interest could be adequately served by some less-speech-restrictive alternative. Id.
(Internal citations removed). The court held that “Honolulu’s peddling ordinance isn’t
substantially broader than necessary to achieve its interests. The ordinance targets
precisely the activity—sidewalk vending—causing the problems the city legitimately
seeks to ameliorate, and it doesn’t sweep in expressive activity that doesn’t contribute
to those problems.” Id. (Internal quotations and citations removed).
The Ninth Circuit further found that the ordinance left open ample alternative
channels of communication, explaining:
The ordinance forecloses one narrow form of expression—sidewalk sales
of message-bearing merchandise—and leaves the plaintiffs free to
disseminate and seek financial support for their views through “myriad
and diverse” alternative channels, such as handing out literature,
proselytizing or soliciting donations. In addition, plaintiffs’ volunteers
may hand out free T-shirts to passers-by, or mingle with Waikiki’s
tourist throngs wearing T-shirts (thereby acting as human billboards).
Plaintiffs may also sell T-shirts through local retail outlets or by opening
their own stores, so long as they comply with the regulations generally
applicable to merchants.
Id. (Internal quotations and citations removed).
As in One World One Family Now, the ordinance at issue seeks to regulate
retail sales on city property. And, as that court concluded, I find the ordinance in this
case is narrowly tailored to serve the City’s interests. Mr. Clark was conducting a
commercial transaction on city property by selling his artwork on the neutral ground.
3
The majority recognizes the City’s substantial interest in preserving the distinct
charm, character, and economic vitality of the French Quarter. The majority further
recognizes the City’s interest in controlling commerce within the city limits, and a
duty to assure the safety and convenience of the people in their use of the City’s
property. The ordinance solely regulates sale of art on public property. The ordinance
does not prohibit all speech on public property. Although the majority gives passing
mention to the potential disruption on order and crowd flow caused by the sale of art
in outdoor public spaces, the majority fails to fully recognize and distinguish the effect
of such conduct from other forms of expression, such as pure oral advocacy. In my
view, there are real differences between distribution of information and sales, as
conducting a sale on public property undoubtedly presents greater crowd control
problems. As in One World One Family Now, I find the ordinance in this case is not
broader than necessary to achieve the City’s interests. Without the ordinance, anyone
would be free to sell their artwork anywhere in the city, undermining the city’s efforts
to maintain the character and economic vitality of the French Quarter. A swarm of art
sellers on city streets would also increase congestion and impede pedestrian and traffic
flow, creating public safety concerns. Further, it is my opinion that a city, by
regulation, can protect local merchants who incur substantial costs to sell artwork in
the city by controlling and governing outdoor vendors of art who necessarily siphon
off some of the sales from these local merchants. Thus, even if there are other ways
to accomplish the City’s goals, I do not find this ordinance substantially burdens more
speech than necessary. The City is entitled to make a judgment that restricting outdoor
sales of artwork to its highest tourism area serves the City’s significant governmental
interests of public safety and economic benefit. The ordinance targets the problems
the city legitimately seeks to control, and does not sweep in other expressive activity
that does not contribute to those problems.
4
Likewise, I do not find the majority’s reliance on the 1984 federal district
court’s decision in ACORN v. City of New Orleans persuasive. In ACORN, the
plaintiff challenged a city ordinance which prohibited persons from standing in a
roadway or on a neutral ground for the purpose of soliciting funds. Unlike this case
which deals strictly Mr. Clark’s retail sale, ACORN is a non-profit association of low
and moderate income people with the purpose of advancing the interests of its
membership in areas of social and political concern such as utility rates, hazardous
materials and park facilities. One of its methods of information dissemination and
fundraising involves distributing information and soliciting funds at roadway
intersections. 606 F. Supp. at 18. ACORN argued the ordinance violated the rights of
its solicitors because it was overbroad and the City could accomplish its goals by less
intrusive means. Id. at 20. The court agreed and found the city’s ordinance fell short
of being a reasonable time, place and manner regulation, reasoning that “for an
ordinance to pass constitutional muster as a time, place and manner regulation, the
government has the burden of showing that it has employed the means least
restrictive of protected First Amendment activity.” Id. at 23 (emphasis added).
However, the United States Supreme Court has subsequently made clear that “this
less-restrictive-alternative analysis ... has never been a part of the inquiry into the
validity of a time, place, and manner regulation.” Ward v. Rock Against Racism, 491
U.S. 781, 797, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989) (internal quotations and
citations removed). The Supreme Court specifically held that “a regulation of the time,
place, or manner of protected speech must be narrowly tailored to serve the
government’s legitimate, content-neutral interests but that it need not be the least
restrictive or least intrusive means of doing so. Rather, the requirement of narrow
tailoring is satisfied so long as the ... regulation promotes a substantial government
interest that would be achieved less effectively absent the regulation.” Rock Against
5
Racism, 491 U.S. at 798-99 (emphasis added) (internal quotations and citations
removed).
Additionally, unlike the majority, I find the ordinance allows ample alternative
channels for artists to communicate their message. An alternative forum does not have
to be the speaker’s first choice. The First Amendment requires only that the
government refrain from denying a reasonable opportunity for communication. In
Members of the City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S.
789, 104 S. Ct. 2118, 80 L. Ed. 2d 772 (1984), a political candidate challenged the
constitutionality of an ordinance which prohibited the posting of signs of public
property. In upholding the ban, the Supreme Court found the ordinance allowed for
adequate alternative modes of communication:
The Los Angeles ordinance does not affect any individual’s freedom to
exercise the right to speak and to distribute literature in the same place
where the posting of signs on public property is prohibited. To the extent
that the posting of signs on public property has advantages over these
forms of expression, there is no reason to believe that these same
advantages cannot be obtained through other means. To the contrary, the
findings of the District Court indicate that there are ample alternative
modes of communication in Los Angeles. Notwithstanding appellees’
general assertions in their brief concerning the utility of political posters,
nothing in the findings indicates that the posting of political posters on
public property is a uniquely valuable or important mode of
communication, or that appellees’ ability to communicate effectively is
threatened by ever-increasing restrictions on expression.
466 U.S. at 812 (internal citations removed). In this case, although the ordinance
limits the number of outdoor places in the city where artists can sell their art, thus
curtailing Mr. Clark’s opportunity to communicate in that specific manner, this is a
necessary side effect of almost any restriction on speech. The proper focus is not on
whether a degree of curtailment exists, but rather on whether the remaining avenues
are adequate. Contrary to Mr. Clark’s assertions, I do not find the ordinance acts as
a sweeping ban on the outdoor sale of artwork in the city. The ordinance does not
proscribe the retail sale of art altogether, but simply regulates and designates the
6
permissible locations for such activity. The ordinance does not apply to retail sales of
art in indoor spaces, nor does the ordinance impose restrictions on other forms of
communication and expressive activity, such as display of artwork. The ordinance
permits a general dissemination of a message. The limited nature of the prohibition
makes it self-evident that ample alternatives remain. The ordinance does not prevent
an artist from displaying his artwork in the same place where the sale of artwork may
be prohibited. Notably, the ordinance would not have prevented Mr. Clark from
displaying his artwork or distributing fliers about his artwork on the same neutral
ground.
For these reasons, I would affirm the rulings of the lower courts and find the
ordinance sets forth constitutionally permissible time, place and manner restrictions
on the sale of art on public property.
7
09/07/18
SUPREME COURT OF LOUISIANA
No. 2017-KK-1453
CITY OF NEW ORLEANS
VERSUS
LAWRENCE CLARK
ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT
COURT FOR THE PARISH OF ORLEANS
Hughes, J., dissents for the reasons assigned by Chief Justice Johnson.
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