Facts
- Lawrence Clark was a visual artist who displayed his artwork for sale on a table on the neutral ground at Decatur Street and Esplanade Avenue in New Orleans.
- On March 22, 2016, the City of New Orleans issued Clark a municipal citation as a “prohibited vendor,” alleging a violation of New Orleans Municipal Code § 110-11.
- Section 110-11 generally barred retail sales outside of an enclosed building unless another provision of the municipal code expressly allowed the activity.
- Other code provisions created limited exceptions and a permitting process that allowed artists to sell their work only in specified areas.
- Taken together, the ordinance and its exceptions operated as a near-total ban on outdoor art sales on public property throughout the city, with lawful sales largely confined to two narrowly defined spaces in the French Quarter.
- Clark moved in municipal court to quash the charging affidavit and challenged § 110-11 as unconstitutional under the First Amendment (and parallel state constitutional protections) because it punished protected expressive activity.
- The City conceded Clark’s display and sale of art implicated free speech, but argued the ordinance was a content-neutral time, place, and manner regulation justified by public-safety concerns (including congestion and pedestrian flow).
- The municipal court denied Clark’s motion to quash, and the Criminal District Court for the Parish of Orleans (Appellate Division) affirmed.
- After an earlier appellate detour involving proper notice to the Louisiana Attorney General, Clark renewed the motion following service; the municipal court again denied relief, the Appellate Division again affirmed, and the Fourth Circuit denied supervisory writs.
- The Louisiana Supreme Court granted supervisory review to decide the constitutional challenge.
Issues
- Whether New Orleans Municipal Code § 110-11, as applied to an artist displaying and selling artwork on public property, violates the First Amendment.
- Whether the City’s regulatory scheme—effectively banning outdoor art sales citywide except in two limited French Quarter locations—qualifies as a valid content-neutral time, place, and manner restriction in a traditional public forum.
Decision
- The Louisiana Supreme Court reversed the lower courts’ rulings.
- The Court held § 110-11 unconstitutional as applied to Clark’s outdoor display and sale of art on public property.
- The Court granted Clark’s motion to quash the charging affidavit.
Legal Principles
- Visual art is protected expression under the First Amendment, and offering artwork for sale does not strip the expression of constitutional protection.
- Streets, sidewalks, and similar public ways (including the neutral ground at issue) are traditional public forums where speech restrictions receive heightened scrutiny.
- A content-neutral time, place, and manner restriction in a traditional public forum must (1) serve a significant governmental interest, (2) be narrowly tailored so it does not burden substantially more speech than necessary, and (3) leave open ample alternative channels for communication.
- Public safety, congestion control, and orderly use of public property can be significant governmental interests, but broad bans that function as near-citywide prohibitions on protected expression are unlikely to satisfy narrow tailoring.
- “Alternative channels” must be practical and meaningful; confining expressive vending to a couple of small, designated areas may fail to provide adequate opportunities for artists to reach their intended audience.
Conclusion
City of New Orleans v. Clark held that New Orleans’ outdoor retail-sales ordinance, which in operation largely barred artists from displaying and selling art on public property except in two limited French Quarter areas, violated the First Amendment as applied to Clark’s expressive activity on the neutral ground; the Louisiana Supreme Court reversed the lower courts and quashed the charging affidavit.