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Louisiana Supreme Court Ends Rule Banning the Outdoor Sale of Art in New Orleans

A city law effectively banned the outdoor sale of art outside the French Quarter, but one artist has helped to set a new precedent with his win against the code on First Amendment grounds.

The French Quarter during Mardi Gras (photo via Pedro Szekely‘s Flickrstream)

Louisiana’s Supreme Court has declared a New Orleans ordinance, which effectively banned the sale of art outside the French Quarter, unconstitutional, after artist Lawrence Clark appealed his case against the law on First Amendment grounds.

Clark’s case began in 2016 when he was issued a citation for selling his creations on the streets of New Orleans without a permit, although police had rarely invoked the ordinance previously. Ostensibly, city authorities have used the law since the 1950sto tightly regulate the economic and cultural landscape of the French Quarter, which has long been the center of the city’s tourism industry.

The city code makes it a crime punishable by up to six months in jail or a $500 fine to sell art outdoors without a license. Further, artists are only allowed to obtain licenses for selling their wares within Jackson Square, Edison Park, and the alleys near St. Louis Cathedral. But obtaining one of these special permits is famously difficult. Jackson Square, for example, has capped its license allotment at around 200 since 1978, for which artists must typically enter a lottery drawing.

With the assistance of his lawyer, Laura Bixby of the Orleans Public Defenders, Clark helped bring the arcane code to the Supreme Court’s attention after winding the case through several lower courts and losing. During their appeal, Bixby argued that the code’s legislative history revealed it to be an attempt by the 1950s city council to control the overcrowding of Jackson Square.

The state supreme court’s majority opinion acknowledges that governments may impose reasonable restrictions on First Amendment rights if the limitations are narrowly tailored and leave open ample alternative channels for communication. Bixby argued, however, that the ordinance was overwrought because it imposed too high a burden on all artists in New Orleans, restricting them from accessing potential clientele based outside the French Quarter and creating a high barrier to enter a market that’s legally considered free-speech territory. In granting Clark’s motion to quash the charges against him, the Louisiana Supreme Court painted the ordinance as an unconstitutional restriction on a citizen’s freedom of expression.

The precedent that this case will set for New Orleans — and possibly other cities around the United States looking for a roadmap of how to regulate the outdoor art market — is major. When asked by the Times-Picayune about what the Supreme Court decision means for city artists, Bixby implied  that it would allow artists to set up shop anywhere they please. “Not in the middle of the road,” she cautioned, but in far more public places than previously allowed.

Bixby also credited Clark with the decision to defend his case on First Amendment grounds. But the defendant has since moved away from New Orleans, and Bixby told the Times-Picayune that she does not know if any of her attempts to notify Clark of his success have reached him.

There are more legal battles on the horizon for Louisiana’s art scene. In March 2018, the American Civil Liberties Union (ACLU) filed a lawsuit challenging New Orleans’ right to restrict murals painted on private property. In particular, the city ordered street artist Cashy D to remove his anti-Trump artwork on South Liberty Street. Created in November 2017, the work spells out President Donald Trump’s misogynist comments about groping women, which were publicized by the release of an Access Hollywood tape during the 2016 presidential election. The ACLU intends to use a similar argument for the mural artist as Bixby used for Clark: defending art on freedom-of-speech grounds.

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