City of New Orleans v. Lawrence Clark

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #040

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 7th day of September, 2018, are as follows:

BY CLARK, J.:

2017-KK-1453 CITY OF NEW ORLEANS v. LAWRENCE CLARK (Parish of Orleans)

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.

REVERSED; MOTION TO QUASH GRANTED

JOHNSON, C.J., dissents and assigns reasons.
HUGHES, J., dissents for the reasons assigned by Johnson, C.J.
09/07/18

SUPREME COURT OF LOUISIANA

No. 2017-KK-1453

CITY OF NEW ORLEANS

VERSUS

LAWRENCE CLARK

ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT
COURT FOR THE PARISH OF ORLEANS

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

1
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

1
Louisiana C.Cr.P. art. 532 provides in relevant part: “A motion to quash may be based on one or
more of the following grounds: (1) The indictment fails to charge an offense which is punishable
under a valid statute.”

2
 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
3
(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

2
Similarly, the Louisiana Constitution provides in relevant part: “No law shall curtail or restrain
the freedom of speech or of the press. Every person may speak, write, and publish his sentiments
on any subject, but is responsible for abuse of that freedom.” La. Const. Ann. art. I, § 7.
4
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. 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

5
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. 3 There is nothing in the

record to suggest Mr. Clark’s work proposed a commercial transaction. Rather, he

was selling his artwork for profit.

The application of the ordinance to Mr. Clark’s expressive activity

undoubtedly raises the question of whether the ordinance abridges his freedom of

speech and expression within the meaning of the First Amendment. However, the

fact that the ordinance presents a First Amendment issue does not necessarily mean

it constitutes a First Amendment violation. See Members of the City Council of City

of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 808-04, 104 S.Ct. 2118, 80

L.Ed. 2d 772 (1984). The Supreme Court has explained:

To ascertain what limits, if any, may be placed on protected speech, we
have often focused on the “place” of that speech, considering the nature
of the forum the speaker seeks to employ. Our cases have recognized
that the standards by which limitations on speech must be evaluated
differ depending on the character of the property at issue. Specifically,
we have identified three types of fora: the traditional public forum, the
public forum created by government designation, and the nonpublic
forum.

3
Designating speech as commercial or non-commercial is not necessarily outcome determinative.
Even pure commercial speech is entitled to significant First Amendment protection. See City of
Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 423, 113 S.Ct. 1505, 123 L.Ed. 2d 99 (1993).
6
Frisby v. Schultz, 487 U.S. 474, 479-80, 108 S.Ct. 2495, 101 L.Ed. 2d 420 (1988)

(internal citations removed). Public places historically associated with the free

exercise of expressive activities, such as streets, sidewalks, and parks, are generally

considered to be traditional public forums. See United States v. Grace, 461 U.S.

177, 103 S.Ct. 1702, 75 L.Ed. 2d 736 (1983). We recognize, and the City does not

dispute, that the neutral ground where Mr. Clark was selling his artwork is a public

forum for First Amendment purposes.

The government’s ability to prohibit expressive activity in public forums is

limited. However, it is well settled that the First Amendment does not guarantee the

right to communicate one’s views at all time and places or in any manner that may

be desired. Taxpayers for Vincent, 466 U.S. at 812 (citing Heffron v. Int’l Soc. for

Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S.Ct. 2559, 69 L.Ed. 2d 298

(1981)). The Supreme Court has long held that even in a public forum the

government may impose reasonable restrictions on the time, place, or manner of

protected speech, provided the restrictions are content neutral, narrowly tailored to

serve a significant governmental interest, and leave open ample alternative channels

for communication of the information. See, e.g., Ward v. Rock Against Racism, 491

U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed. 2d 661 (1989); Clark v. Community for

Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed. 2d 221 (1984);

Consolidated Edison Co., v. Public Serv. Comm’n, 447 U.S. 530, 535-36, 100 S.Ct.

2326, 65 L.Ed. 2d 319 (1980); see also In re Warner, 05-1303 (La. 4/17/09), 21 So.

3d 218, 244. The City’s ordinance must be examined in the context of this

framework.

The first criterion for a valid time, place, and manner restriction is that the

ordinance be “content neutral.” This determination is essential because regulations

that burden speech, but that are unrelated to the speaker’s viewpoint or to the content

7
of the speech, are subject to an intermediate level of judicial scrutiny, rather than the

strict level of scrutiny that is applicable to content based regulations that suppress,

disadvantage, or impose differential burdens on speech because of its content.

Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 642, 114 S.Ct. 2445, 129 L. Ed. 2d

497 (1994); see also, In re Warner, 21 So. 3d at 244. Strict scrutiny makes it less

likely that a regulation will clear the constitutional hurdle because the operative test

is whether a regulation “is necessary to serve a compelling state interest and is

narrowly drawn to achieve that end.” Arkansas Writers’ Project, Inc. v. Ragland,

481 U.S. 221, 231, 107 S.Ct. 1722, 95 L.Ed. 2d 209 (1987). However, under

intermediate scrutiny, the test is less exacting and requires only that the restriction

be narrowly tailored to serve a significant governmental interest, and that it leaves

open ample alternative channels for communication of the information. Community

for Creative Non-Violence, 468 U.S. at 293.

“The principal inquiry in determining content neutrality, in speech cases

generally and in time, place or manner cases in particular, is whether the government

had adopted a regulation of speech because of disagreement with the message it

conveys.” Rock Against Racism, 491 U.S. at 791 (citing Community for Creative

Non-Violence, 468 U.S. at 295). A regulation that serves purposes unrelated to the

content of expression is deemed neutral, even if it has an incidental effect on some

speakers or messages but not others. Rock Against Racism, 491 U.S. at 791. In this

case, the ordinance regulates the outdoor locations where artists can sell their

artwork. The ordinance is equally applicable to all artists, regardless of medium or

message. Thus, we find the ordinance satisfies the content neutrality requirement.

To pass constitutional muster, the ordinance must also serve a significant

governmental interest. The City asserts an interest in preserving the “tout ensemble”

of the French Quarter and advancing its substantial economic interest by promoting

8
tourism, and an interest in keeping its streets and neutral grounds open and available

for movement in a manner that advances public safety. We accept that the City has

stated a legitimate and significant interest in preserving the distinct charm, character,

and economic vitality of the French Quarter. In enacting the ordinance, the New

Orleans City Council recognized the Supreme Court’s decision in City of New

Orleans v. Dukes, which noted “[t]he Vieux Carre of the city of New Orleans is the

heart of [the] city’s considerable tourist industry and an integral component of the

city’s economy.” 427 U.S. 297, 299, 96 S.Ct. 2513, 49 L.Ed. 2d 511 (La. 1976).4

The regulation of sales of merchandise on city property within city limits is part of

a city’s traditional municipal police powers, and the City has a legitimate interest in

controlling commerce on city streets and other public property. 5 The City has made

the considered decision to promote its economy by driving outdoor art sales to the

heart of the City’s tourism industry – the French Quarter ̶ thereby “enhancing the

vital role of the French Quarter’s tourist-oriented charm in the economy of New

Orleans.” See id. at 303. We find that decision advances the City’s significant

economic and cultural preservation interests. See also, One World Family Now v.

City of Miami Beach, 175 F.3d 1282, 1288 (11th Cir. 1999) (“There is also no

question that the city’s further interest in creating an aesthetic ambiance which will

attract tourists to the historic Art Deco district – which it considers ‘the economic

lifeblood of the city’ ̶ is a substantial government interest.…”). The Supreme Court

has recognized that the government may exercise its police powers to advance

esthetic values, reasoning the “concept of public welfare is broad and inclusive. The

4
See City of New Orleans Ordinance Documents, No. 21787 M.C.S., 10/28/04.
5
Police power is the power of a governmental body to impose laws and regulations that are
reasonably related to the protection or promotion of a public good such as health, safety or
welfare. Louisiana Associated Gen. Contractors, Inc. v. Calcasieu Par. Sch. Bd., 586 So. 2d
1354, 1367 n.20 (La. 1991).

9
values it represents are spiritual as well as physical, aesthetic as well as monetary.”

Taxpayers for Vincent, 466 U.S. at 805 (internal citations removed). Further, there

is no question that “[g]overnmental authorities have the duty and responsibility to

keep their streets open and available for movement.” Cox v. Louisiana, 379 U.S.

536, 554-55, 85 S.Ct. 453, 13 L.Ed 2d 471 (1965). The neutral grounds between the

streets should be treated no differently. We find the City has the right to regulate

the use of its streets, neutral grounds, and other facilities to assure the safety and

convenience of the people in their use of the property. See Heffron, 452 U.S. at 650.

In addition to serving a significant governmental interest, the ordinance must

be narrowly tailored to serve that interest. The means chosen by the City to achieve

the desired end need not be the least intrusive or least restrictive means of doing so.

Rock Against Racism, 491 U.S. at 798. The Supreme Court has clearly held that

“restrictions on the time, place, or manner of protected speech are not invalid ‘simply

because there is some imaginable alternative that might be less burdensome on

speech.’” Id. at 797 (citing United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct.

2897, 2906, 86 L.Ed. 2d 536 (1985)). Allowing some forms of expression, while

denying others, does not signify a violation of the First Amendment. See U.S. v.

Kokinda, 497 U.S. 720, 734 110 S.Ct. 3115, 111 L.Ed. 2d 571 (1990) (wherein the

Court found the activity of solicitation could be signaled out and prohibited because

of the disruption it caused). The sale of art in outdoor public spaces invites patrons

not only to observe the artwork, but also to stop for longer periods of time to conduct

a sales transaction. See, e.g., Heffron, 452 U.S. at 653 (wherein the Court recognized

a distinction between the purely communicative aspect of oral advocacy and the

solicitation of contributions, which may be more disruptive on order and crowd

flow). As the Court explained in Kokinda:

10
 Solicitation impedes the normal flow of traffic. Solicitation requires
action by those who would respond: The individual solicited must
decide whether or not to contribute (which itself might involve reading
the solicitor's literature or hearing his pitch), and then, having decided
to do so, reach for a wallet, search it for money, write a check, or
produce a credit card. As residents of metropolitan areas know from
daily experience, confrontation by a person asking for money disrupts
passage and is more intrusive and intimidating than an encounter with
a person giving out information. One need not ponder the contents of a
leaflet or pamphlet in order mechanically to take it out of someone's
hand, but one must listen, comprehend, decide, and act in order to
respond to a solicitation. Solicitors can achieve their goal only by
“stopping [passersby] momentarily or for longer periods as money is
given or exchanged for literature” or other items.

497 U.S. at 733-34 (internal citations removed). The outdoor sale of art raises the

same concerns. Notably the ordinance does not purport to regulate display of art, or

other forms of communication. The act of displaying art does not require action by

anyone, whereas the sale of art requires action – someone stopping to make a

transaction. Art purchases are more time-consuming and more absorbing than

observing a display and moving on. Limiting outdoor sale of art to designated areas

of the city and prohibiting general retail sale of art on sidewalks and neutral grounds

allows drivers to have clear visuals of the roads and pedestrians without distractions

and delays, and allows for the free flow of pedestrian and vehicular traffic within the

city.

The City maintains that absent the ordinance, unlimited artists could set up

shop and conduct retail sales on the neutral grounds, sidewalks, or other public areas

throughout the city. Unquestionably, crowds of artists selling their work would

affect the City’s ability to control public safety and regulate sales on its property.

See, e.g., Community for Creative Non-Violence, 468 U.S. at 296-97; Heffron, 452

U.S. at 652-53. While the ordinance does impose some burden on speech, the

ordinance does not prohibit all speech on public property, including the neutral

ground chosen by Mr. Clark. The City asserts that restricting outdoor sales of art to

11
its highest tourism area serves its significant governmental interests of public safety

and economic benefit, and, without the regulation, it could not effectively

accomplish its goals.

Mr. Clark concedes that the City has a valid interest in regulating the conduct

of art vendors and that narrowly tailored regulations that ensure safety of drivers and

pedestrians comport with the First Amendment. However, he argues, the City has

taken no measures to tailor its regulation of the sale of art in public places such as

the neutral ground to avoid impermissibly burdening protected speech. Rather, the

City has completely banned the sale of art in every public space in New Orleans save

the Jackson Square area and Edison Park in the French Quarter.

The decision in ACORN v. City of New Orleans, 600 F.Supp. 16 (E.D.La.

1984), provides guidance on permissible regulations on speech in the neutral ground

and other public fora. In ACORN, a non-profit organization challenged a New

Orleans city ordinance that prohibited persons from standing in a roadway or on the

neutral ground for the purpose of soliciting funds. The court found the total ban on

soliciting funds in roadways or on neutral grounds to be an unconstitutional

restriction of expression and enjoined its enforcement. The court held that while the

City had a valid interest in promoting safety and convenience by enacting time,

place, and manner restrictions on expressive activity on the neutral ground, a

complete ban was overbroad. Id. at 22. Specifically, the court found the City had

not taken into account factors such as “the part of town, the number of cars passing,

the speed of traffic, the width of the neutral grounds, the presence of a stop sign or

traffic signal, or the color of the light … the number of solicitors, their visibility, the

size of their signs, the time of day or the day of the week.” Id.

The record before us indicates the City has taken no measures to tailor its

regulation of the sale of art in public places to avoid impermissibly burdening

12
protected speech. In fact, Municipal Code § 110-11 is not even limited to areas next

to roadways or solicitation of motorists. Rather, it extends to all outdoor sales to all

individuals, including pedestrians. The City could have made “an earnest attempt to

accommodate legitimate speech interests through careful drafting” by adopting “less

restrictive methods” to ensure public safety – for example, by regulating the distance

between an artist and the roadway or by prohibiting artists from distracting behavior.

See ACORN, 606 F. Supp. at 24. We find 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. Both of these interests can be achieved

by far less restrictive means than the ordinance’s citywide prohibition on outdoor

sales of art, save the Jackson Square area and Edison Park in the French Quarter.

Thus, we conclude the ordinance is overly broad and not narrowly tailored to serve

the City’s substantial interests.

Furthermore, we find the ordinance does not allow ample alternative channels

for artists to communicate their message. The City’s ordinance offers no alternative

geographic channel for selling art; such sales are completely banned outside the

French Quarter.

The guarantee of the right to expression under the Louisiana Constitution

must be at least equal – if not greater – to that of the First Amendment. See State v.

Franzone, 384 So. 2d 409, 411 (La. 1980). However, owing to a ban on artistic

expression that is geographically broad in scope, there is no ample alternative

channel for artistic expression. Community for Creative Non-Violence, 468 U.S. at

293. In a city with allegiances to neighborhoods spanning generations, the people

who populate Central City, the Garden District, the Irish Channel, Broadmoor,

Hollygrove, Gert Town, Mid-City, Treme, City Park, Lakeview, Gentilly Woods,

Faubourg Marigny, St. Roch, the Lower Ninth Ward, Little Woods, Village de L’est,

13
Lake Catherine, Algiers Point and English Turn, among other neighborhoods, have

limitations imposed on their constitutionally-protected artistic expression. Thus, we

find the City’s ordinance violates the First Amendment, and the lower courts erred

by holding otherwise.

DECREE

Accordingly, we hold New Orleans Municipal Code §110-11 is

unconstitutional. We reverse the lower courts’ rulings and grant the motion to quash

the charging affidavit against Mr. Clark.

REVERSED; MOTION TO QUASH GRANTED

14
09/07/18

SUPREME COURT OF LOUISIANA

No. 2017-KK-1453

CITY OF NEW ORLEANS

VERSUS

LAWRENCE CLARK

ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT
COURT FOR THE PARISH OF ORLEANS

JOHNSON, Chief Justice, dissents and assigns reasons.

I respectfully dissent because I find Municipal Code §110-11, which regulates

the outdoor retail sale of art in New Orleans, is constitutional and does not violate Mr.

Clark’s First Amendment rights.

In this case, Mr. Clark was conducting a retail sale of his artwork on public

property without a permit. There is no question that Mr. Clark’s conduct is subject to

reasonable time, place, or manner restrictions by the City. See Clark v. Cmty. for

Creative Non-Violence, 468 U.S. 288, 293, 104 S. Ct. 3065, 3069, 82 L. Ed. 2d 221

(1984). As recognized by the majority, the City’s ordinance is subject to an

intermediate level of judicial scrutiny and only requires that the restriction be

narrowly tailored to serve a significant governmental interest, and that it leaves open

ample alternative channels for communication of the information. See id. In this case,

I find the ordinance passes constitutional muster.

The Ninth Circuit’s decision in One World One Family Now v. City & Cty. of

Honolulu, 76 F.3d 1009 (9th Cir. 1996) is particularly instructive because it concerns

a city ordinance regulating sales in public places. In that case, plaintiffs, nonprofit

organizations that sold T-shirts imprinted with various philosophical and inspirational

1
messages, challenged a Honolulu ordinance which banned the sale of all “goods,

wares, merchandise, foodstuffs, refreshments or other kinds of property or services

... upon the public streets, alleys, sidewalks, malls, parks, beaches and other public

places in Waikiki.” One World One Family Now, 76 F.3d at 1011. Plaintiffs argued

their selling was constitutionally protected expression and the ordinance could not be

applied to them. The court agreed that plaintiffs’ conduct was protected by the First

Amendment. Relying on its earlier decision in Gaudiya Vaishnava Soc’y v. City and

County of San Francisco, 952 F.2d 1059 (9th Cir.1990), cert. denied, 504 U.S. 914,

112 S.Ct. 1951, 118 L.Ed. 2d 555 (1992), the court explained “that, when the sale of

merchandise bearing political, religious, philosophical or ideological messages is

‘inextricably intertwined’ with other forms of protected expression (like distributing

literature and proselytizing), the First Amendment applies.” Id. at 1012. However, the

court went on to hold the Honolulu ordinance was a valid time, place and manner

restriction and could be applied to prohibit plaintiffs’ selling of their merchandise.

The Ninth Circuit recognized that cities have a substantial interest in protecting

the aesthetic appearance of their communities by avoiding visual clutter and a

substantial interest in assuring safe and convenient circulation on their streets. Id. at

1013. The court further found that Honolulu demonstrated a substantial interest in

protecting local merchants from unfair competition. Id. The court held that the

ordinance was narrowly tailored to serve these interests because they would be

achieved less effectively absent the regulation. Id. The court noted:

Without the ordinance, sidewalk vendors (commercial and charitable
alike) would be free to peddle their wares on [the streets] undermining
the city’s efforts to provide a pleasant strolling and shopping area. A
proliferation of sidewalk vendors could also aggravate the congestion on
already crowded sidewalks and siphon off sales from local merchants.
Because the peddling ordinance addresses these problems without ...
significantly restricting a substantial quantity of speech that does not
create the same evils, [the ordinance] is narrowly tailored.

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Id. at 1014. The court further rejected plaintiffs’ argument that Honolulu could adopt

less restrictive alternatives to advance its interests, such as limiting the number of

vendors, their hours of operation or the size and location of their stands. Id. The court

explained a “reasonable time, place and manner regulation, however, need not be the

least restrictive or least intrusive alternative. So long as the means chosen are not

substantially broader than necessary to achieve the government’s interest, ... the

regulation will not be invalid simply because a court concludes that the government’s

interest could be adequately served by some less-speech-restrictive alternative. Id.

(Internal citations removed). The court held that “Honolulu’s peddling ordinance isn’t

substantially broader than necessary to achieve its interests. The ordinance targets

precisely the activity—sidewalk vending—causing the problems the city legitimately

seeks to ameliorate, and it doesn’t sweep in expressive activity that doesn’t contribute

to those problems.” Id. (Internal quotations and citations removed).

The Ninth Circuit further found that the ordinance left open ample alternative

channels of communication, explaining:

The ordinance forecloses one narrow form of expression—sidewalk sales
of message-bearing merchandise—and leaves the plaintiffs free to
disseminate and seek financial support for their views through “myriad
and diverse” alternative channels, such as handing out literature,
proselytizing or soliciting donations. In addition, plaintiffs’ volunteers
may hand out free T-shirts to passers-by, or mingle with Waikiki’s
tourist throngs wearing T-shirts (thereby acting as human billboards).
Plaintiffs may also sell T-shirts through local retail outlets or by opening
their own stores, so long as they comply with the regulations generally
applicable to merchants.

Id. (Internal quotations and citations removed).

As in One World One Family Now, the ordinance at issue seeks to regulate

retail sales on city property. And, as that court concluded, I find the ordinance in this

case is narrowly tailored to serve the City’s interests. Mr. Clark was conducting a

commercial transaction on city property by selling his artwork on the neutral ground.

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The majority recognizes the City’s substantial interest in preserving the distinct

charm, character, and economic vitality of the French Quarter. The majority further

recognizes the City’s interest in controlling commerce within the city limits, and a

duty to assure the safety and convenience of the people in their use of the City’s

property. The ordinance solely regulates sale of art on public property. The ordinance

does not prohibit all speech on public property. Although the majority gives passing

mention to the potential disruption on order and crowd flow caused by the sale of art

in outdoor public spaces, the majority fails to fully recognize and distinguish the effect

of such conduct from other forms of expression, such as pure oral advocacy. In my

view, there are real differences between distribution of information and sales, as

conducting a sale on public property undoubtedly presents greater crowd control

problems. As in One World One Family Now, I find the ordinance in this case is not

broader than necessary to achieve the City’s interests. 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. A swarm of art

sellers on city streets would also increase congestion and impede pedestrian and traffic

flow, creating public safety concerns. Further, it is my opinion that a city, by

regulation, can protect local merchants who incur substantial costs to sell artwork in

the city by controlling and governing outdoor vendors of art who necessarily siphon

off some of the sales from these local merchants. Thus, even if there are other ways

to accomplish the City’s goals, I do not find this ordinance substantially burdens more

speech than necessary. The City is entitled to make a judgment that restricting outdoor

sales of artwork to its highest tourism area serves the City’s significant governmental

interests of public safety and economic benefit. The ordinance targets the problems

the city legitimately seeks to control, and does not sweep in other expressive activity

that does not contribute to those problems.

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 Likewise, I do not find the majority’s reliance on the 1984 federal district

court’s decision in ACORN v. City of New Orleans persuasive. In ACORN, the

plaintiff challenged a city ordinance which prohibited persons from standing in a

roadway or on a neutral ground for the purpose of soliciting funds. Unlike this case

which deals strictly Mr. Clark’s retail sale, ACORN is a non-profit association of low

and moderate income people with the purpose of advancing the interests of its

membership in areas of social and political concern such as utility rates, hazardous

materials and park facilities. One of its methods of information dissemination and

fundraising involves distributing information and soliciting funds at roadway

intersections. 606 F.Supp. at 18. ACORN argued the ordinance violated the rights of

its solicitors because it was overbroad and the City could accomplish its goals by less

intrusive means. Id. at 20. The court agreed and found the city’s ordinance fell short

of being a reasonable time, place and manner regulation, reasoning that “for an

ordinance to pass constitutional muster as a time, place and manner regulation, the

government has the burden of showing that it has employed the means least

restrictive of protected First Amendment activity.” Id. at 23 (emphasis added).

However, the United States Supreme Court has subsequently made clear that “this

less-restrictive-alternative analysis ... has never been a part of the inquiry into the

validity of a time, place, and manner regulation.” Ward v. Rock Against Racism, 491

U.S. 781, 797, 109 S.Ct. 2746, 105 L.Ed. 2d 661 (1989) (internal quotations and

citations removed). The Supreme Court specifically held that “a regulation of the time,

place, or manner of protected speech must be narrowly tailored to serve the

government’s legitimate, content-neutral interests but that it need not be the least

restrictive or least intrusive means of doing so. Rather, the requirement of narrow

tailoring is satisfied so long as the ... regulation promotes a substantial government

interest that would be achieved less effectively absent the regulation.” Rock Against

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Racism, 491 U.S. at 798-99 (emphasis added) (internal quotations and citations

removed).

Additionally, unlike the majority, I find the ordinance allows ample alternative

channels for artists to communicate their message. An alternative forum does not have

to be the speaker’s first choice. The First Amendment requires only that the

government refrain from denying a reasonable opportunity for communication. In

Members of the City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S.

789, 104 S.Ct. 2118, 80 L.Ed. 2d 772 (1984), a political candidate challenged the

constitutionality of an ordinance which prohibited the posting of signs of public

property. In upholding the ban, the Supreme Court found the ordinance allowed for

adequate alternative modes of communication:

The Los Angeles ordinance does not affect any individual’s freedom to
exercise the right to speak and to distribute literature in the same place
where the posting of signs on public property is prohibited. To the extent
that the posting of signs on public property has advantages over these
forms of expression, there is no reason to believe that these same
advantages cannot be obtained through other means. To the contrary, the
findings of the District Court indicate that there are ample alternative
modes of communication in Los Angeles. Notwithstanding appellees’
general assertions in their brief concerning the utility of political posters,
nothing in the findings indicates that the posting of political posters on
public property is a uniquely valuable or important mode of
communication, or that appellees’ ability to communicate effectively is
threatened by ever-increasing restrictions on expression.

466 U.S. at 812 (internal citations removed). In this case, although the ordinance

limits the number of outdoor places in the city where artists can sell their art, thus

curtailing Mr. Clark’s opportunity to communicate in that specific manner, this is a

necessary side effect of almost any restriction on speech. The proper focus is not on

whether a degree of curtailment exists, but rather on whether the remaining avenues

are adequate. Contrary to Mr. Clark’s assertions, I do not find the ordinance acts as

a sweeping ban on the outdoor sale of artwork in the city. The ordinance does not

proscribe the retail sale of art altogether, but simply regulates and designates the

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permissible locations for such activity. The ordinance does not apply to retail sales of

art in indoor spaces, nor does the ordinance impose restrictions on other forms of

communication and expressive activity, such as display of artwork. The ordinance

permits a general dissemination of a message. The limited nature of the prohibition

makes it self-evident that ample alternatives remain. The ordinance does not prevent

an artist from displaying his artwork in the same place where the sale of artwork may

be prohibited. Notably, the ordinance would not have prevented Mr. Clark from

displaying his artwork or distributing fliers about his artwork on the same neutral

ground.

For these reasons, I would affirm the rulings of the lower courts and find the

ordinance sets forth constitutionally permissible time, place and manner restrictions

on the sale of art on public property.

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09/07/18

SUPREME COURT OF LOUISIANA

No. 2017-KK-1453

CITY OF NEW ORLEANS

VERSUS

LAWRENCE CLARK

ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT
COURT FOR THE PARISH OF ORLEANS

Hughes, J., dissents for the reasons assigned by Chief Justice Johnson.

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