SIGNIFICANCE: BERY V. CITY OF NEW YORK

Case Name: Bery v. City of New York 
Citation: 97 F.3d 689 (2d Cir. 1996)
Topics: Time, Place and Manner Restrictions; Public Forum

A group of visual artists brought suit against the city of New York challenging the General Vendor’s Law, which prohibited them from selling their work in public places without a general vendor’s license. The ordinance exempted the sale of written materials but not art. In addition, any veteran who qualified for a license was given one, which caused the number of issued licenses to increase beyond the originally specified limit. The District Court ruled that the law was a content-neutral ordinance, which may restrict the time, place, and manner of speech, provided that it is narrowly tailored to serve a significant government interest and leaves open alternative channels for communication. The Court found that the motivation for the ordinance was based on neither censorship of the work nor animus toward the artists; rather, it was designed to address street congestion, a goal that would be achieved less effectively without the ordinance. The restriction on the petitioners’ right to sell artwork was deemed by the District Court an incidental consequence of the ordinance. In its analysis, the District Court adopted a restrictive view of the First Amendment, viewing it as safeguarding primarily the free flow of political and religious views. Accordingly, it upheld the city ordinance.

The case was appealed to the Second Circuit Court of Appeals. On appeal, the city argued that the merchandising of art is not protected expression and, even if it were, the city has a significant interest in keeping its public spaces safe and free from congestion, and alternative channels of expression exist in the form of street fairs and sales from the artists’ homes. The artists argued that their art was speech for which they would have no adequate alternative channel of expression in a public forum if the ordinance were upheld.

The Second Circuit Court found first that visual art, whether sold for profit or given away, is as much speech as written work for purposes of the First Amendment. The Court then determined that the ordinance failed even if it were analyzed under the less-demanding content-neutral test. In its content-neutral analysis, the Court found that, while the city had a significant interest in keeping its public spaces safe and free from congestion, the ordinance was not narrowly tailored to meet this goal. The city could not bar an entire category of expression to effectuate its goal. The Court agreed with the artists that they were entitled to a public forum for their expressive activity, and the city had not shown that adequate alternative public forum existed for the artists’ expression. As a result, the Court determined that the District Court had arrived at an erroneous conclusion, and reversed its decision by granting the artists’ motion for a preliminary injunction.

This case is significant for its inclusion of visual street art in the types of speech protected by the First Amendment. Additionally, the case seems to say that, for purposes of content-neutral analysis, alternative channels for expression are inadequate if they are not widely available.