## Facts

- New York City’s General Vendors Law required a general vendor’s license to exhibit, sell, or offer goods for sale in public places.
- The number of general vendor licenses was capped at 853, producing multi-year waiting lists and making licenses difficult to obtain.
- The law exempted vendors of newspapers, books, and other written material from licensing, and imposed no numerical limit on those vendors.
- Individual visual artists and an artists’ group created and sold paintings, photographs, and sculptures on city sidewalks and other public places.
- Plaintiffs alleged they were arrested, threatened with arrest, or harassed for displaying and selling art without a license; some works were confiscated and damaged; at least one artist refrained from selling due to fear of enforcement.
- Plaintiffs asserted that selling and displaying art in public spaces was part of their expressive activity and allowed them to reach audiences unlikely to visit galleries or museums.
- The City defended the scheme as a content-neutral method to reduce congestion and maintain public safety, asserting other avenues to sell art existed (e.g., street fairs or from home).

## Issues

1. Whether visual art (including its display and sale) is protected speech under the First Amendment.
2. Whether applying the General Vendors Law to visual artists is a valid content-neutral time, place, and manner restriction in a traditional public forum, including whether it is narrowly tailored and leaves open ample alternative channels of communication.
3. Whether exempting written material vendors while restricting visual artists violates equal protection where a fundamental expressive right is burdened.
4. Whether plaintiffs satisfied the requirements for preliminary injunctive relief against enforcement.

## Decision

- The Second Circuit consolidated the appeals, reversed the district court’s denials of preliminary injunctions, and directed entry of preliminary injunctive relief.
- The court held that visual art is fully protected expression under the First Amendment, whether sold for profit or given away.
- Assuming the ordinance was content neutral, the court concluded it still failed time, place, and manner scrutiny as applied because the licensing cap and waiting lists effectively barred artists’ expression in public spaces.
- The court found the City had not shown ample alternative channels for this public-forum expression; street fairs or home sales were not adequate substitutes.
- The court concluded that the disparate treatment of written materials and visual art raised a substantial equal protection problem given the burden on a fundamental First Amendment right.
- The court determined plaintiffs showed likelihood of success on the merits and irreparable injury from ongoing restriction of First Amendment freedoms.

## Legal Principles

- Visual art is “speech” for First Amendment purposes and receives full constitutional protection comparable to other expressive media.
- The sale of expressive works can be protected when it is closely connected to protected expression; government may not treat merchandising of art as categorically unprotected.
- Sidewalks and similar public places are traditional public forums; restrictions on expression there are subject to heightened scrutiny under the time, place, and manner framework.
- A content-neutral regulation must be narrowly tailored to serve a significant governmental interest and must leave open ample alternative channels for communication; a city may not effectively bar an entire category or medium of expression to address congestion.
- When government burdens a fundamental First Amendment right, differential treatment among expressive media can support an equal protection claim beyond ordinary rational-basis review.
- Ongoing loss of First Amendment freedoms constitutes irreparable injury supporting preliminary injunctive relief.

## Conclusion

The Second Circuit held that visual artists’ public display and sale of art is fully protected expression and that New York City could not use a capped vendor-license scheme—especially one exempting written materials—to effectively exclude visual art from traditional public forums; the court therefore reversed and ordered preliminary injunctive relief against enforcement as applied to the artists.


Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996)