## Facts

- The City of New Orleans regulated the sale of artwork by permitted artists in Jackson Square through municipal code provisions limiting permits to “original” hand-created works and excluding works created by “mechanical or duplicative processes.”
- Marc C. Trebert created images by taking digital photographs, printing them, and adding pastel coloring by hand to each print.
- Trebert obtained a permit to sell artwork in Jackson Square.
- City officials cited Trebert and prevented him from selling his works in Jackson Square on the ground that his process involved mechanical steps (digital capture and printing), making the works non-“original” under the ordinance.
- During the dispute, a temporary injunction prevented Trebert from selling his digitally produced and pastel-enhanced works in Jackson Square.
- The City justified the restriction as protecting the character and charm of the French Quarter and avoiding perceived “cheapening” of Jackson Square.

## Issues

1. Whether the display and sale of Trebert’s pastel-enhanced digital photographs in Jackson Square is protected expression in a public forum under the First Amendment.
2. Whether excluding artwork involving mechanical processes, as applied to Trebert, was a valid content-neutral time, place, and manner restriction (significant interest, narrow tailoring, and ample alternative channels).

## Decision

- The court granted Trebert’s motion for partial summary judgment on his First Amendment claim.
- The court held Trebert’s work constituted protected expression and that Jackson Square functioned as a public forum for this activity.
- The court accepted historic-preservation and aesthetic goals as potentially significant governmental interests.
- The court held the ordinance unconstitutional as applied to Trebert because the City did not justify, with evidence, a broad exclusion of works involving mechanical processes.
- The court enjoined enforcement of the mechanical-process exclusion against Trebert’s artwork in Jackson Square.

## Legal Principles

- Visual art, including works offered for sale, is protected expression under the First Amendment.
- In a public forum, a content-neutral time, place, and manner restriction is valid only if it serves a significant governmental interest, is narrowly tailored, and leaves open ample alternative channels for communication.
- A city’s aesthetic and historic-preservation interests may be significant, but restrictions burdening expression must be supported by more than speculation.
- An as-applied challenge may succeed where a regulation broadly excludes expressive works based on technique without a demonstrated connection between the exclusion and the asserted governmental interests.

## Conclusion

The court ruled that New Orleans could not, consistent with the First Amendment, apply its Jackson Square artist-permit ordinance to bar Trebert from selling his digitally photographed but hand-altered artwork, because the City failed to show that excluding mechanically assisted techniques was narrowly tailored or otherwise justified in that public forum.


Trebert v. City of New Orleans, No. 04-1349, 2005 U.S. Dist. LEXIS 1560 (E.D. La. Jan. 27, 2005)