City of New Orleans v. Clark

• Citation: 251 So.3d 1047
• Decision Date: 07 September 2018
• Docket Number: No. 2017-KK-1453,2017-KK-1453
• Parties: CITY OF NEW ORLEANS v. Lawrence CLARK
• Court: Supreme Court of Louisiana

251 So.3d 1047

CITY OF NEW ORLEANS

v.Lawrence CLARK

No. 2017-KK-1453

Supreme Court of Louisiana.

September 7, 2018

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 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 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 (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 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.2d 487, 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 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, 96 S.Ct. 1817.³ There is nothing in the...