NEW ORLEANS – The Louisiana Supreme Court recently ruled that a New Orleans city ordinance restricting the sale of art by street vendors violates the First Amendment.
In the Sept. 7 opinion, Justice Marcus Clark wrote, “It is undisputed that the speech or expression involved in this case is protected by the First Amendment.”
Chief Justice Bernette Johnson dissented in a separate opinion, joined by Associate Justice Jefferson Hughes, disagreeing with the majority and finding that the ordinance did not burden freedom of speech.
In 2016, Lawrence Clark was selling his art in New Orleans when he was issued a citation as a prohibited vendor. Clark’s art was displayed on Decatur Street and Esplanade Avenue in New Orleans, which is considered a “neutral” area under New Orleans’ Municipal Code §110 -11 that govern street vendors.
Clark filed a motion to quash his charging affidavit and declare the New Orleans law unconstitutional. He claimed that the ordinance infringes upon his First Amendment right of expression. The New Orleans Municipal Court denied Clark’s motion to quash during a hearing, as did the Orleans Parish Criminal District Court. The Appellate Division of Criminal District Court affirmed the municipal court’s decision. The appeals court also denied Clark’s writ application, calling the motion to quash “meritless.”
The Supreme Court granted Clark’s writ application.The City argued that the ordinance regulates commercial speech, and that without the regulations of the ordinance, unlimited artists could sell their work on any public area in the city, affecting their ability to control public safety.
Justice Clark countered that Mr. Clark was selling his artwork for profit, which was not an action of commercial speech, and that “the neutral ground where Mr. Clark was selling his artwork is a public forum for First Amendment purposes.”
Justice Clark said, “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,” finding that both of the interests could be achieved “by far less restrictive means than the ordinance’s citywide prohibition on outdoor sales of art.” He also pointed out that the city also offers no alternative geographical location. ,
The justice agreed that the city “has stated a legitimate and significant interest in preserving the distinct charm, character, and economic vitality of the French Quarter,” but stated that the ordinance is overly broad, restricting art sales which “are completely banned outside the French Quarter.”
In her dissent, Johnson disagreed with the majority, finding that the city ordinance has been narrowly tailored to achieve the city’s interests, opining that a city has the right to “protect local merchants … by controlling and governing outdoor vendors of art who necessarily siphon off some of the sales from these local merchants.”
The dissent, which Hughes joined in, stated that, “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.”
The lower court rulings were reversed, and Mr. Clark’s charging affidavit was quashed.