The bustling streets of the French Quarter and other parts of New Orleans could soon see more artists selling their works in more places, thanks to a Louisiana Supreme Court decision issued Friday.
The high court voted 5-2 to strike down New Orleans' ban on outdoor art sales without a permit, potentially opening the floodgates on an art world subculture that the city has sought to regulate since 1955.
Justice Marcus Clark wrote the majority opinion, which called the city’s ban on unpermitted public art vendors an unconstitutional encroachment on free speech. He was joined by Justices Greg Guidry, Scott Crichton, James Genovese and John Weimer.
Clark said that while the city may have had reasons to try to funnel outdoor art sales to a few patches of the French Quarter like Jackson Square, it went too far by sweeping up other neighborhoods in the ban as well.
“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,” Clark said. “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 protected speech.”
It is not clear how the city will respond, although it could attempt to write a new ordinance that does not run afoul of the First Amendment.
The court's majority made it clear that the city does have a right to institute “time and place” restrictions on art sales, and particularly to regulate sales in the French Quarter.
LaTonya Norton, a spokeswoman for Mayor LaToya Cantrell, said the city was still studying the decision.
Staff attorney Laura Bixby of the Orleans Public Defenders, who mounted the challenge to the ban, said she does not expect the decision to affect the permitting scheme in place for Jackson Square, Edison Park in the 300 block of Bourbon Street, and the alleys near St. Louis Cathedral.
However, artists will now be free to sell their creations elsewhere in the French Quarter or in other neighborhoods without a permit, she said.
More than two years after an aspiring artist was cited for selling his creations without a license on the Esplanade Avenue neutral ground, his…
“It’s a victory for artists who are trying to survive in this city and just trying to earn their livelihood,” she said. “It opens up avenues for artists to display their art elsewhere in the city, which was previously a crime.”
The high court’s opinion came in response to a constitutional challenge that worked its way up from humble beginnings.
On March 24, 2016, aspiring artist Lawrence Clark was selling art from a table in the neutral ground on Esplanade Avenue near Decatur Street. A police officer issued him a citation for selling art in the open air without a permit.
The case might have ended there if Clark had paid his fine. Instead, his lawyer, Bixby, challenged the constitutionality of the city’s ban on outdoor art sales except at specified locations.
Although many New Orleanians perhaps assume that the ban applies only to the French Quarter, it actually prevents anyone from selling art in public spaces anywhere in the city without a permit. Art galleries are not affected by the ban. Neither are the many fairs and festivals where artworks are sold.
The permits allow year-round outdoor art sales in only three areas: the perimeter of Jackson Square, Pere Antoine and Pirate alleys next to St. Louis Cathedral, and Edison Park.
The Supreme Court's majority opinion bemoaned the fact that neighborhoods from Central City to English Turn were cut out of the art trade, "in a city with allegiances to neighborhoods spanning generations."
While the ban on unpermitted art sales has been selectively enforced, it has resulted in citations for 50 to 60 people over the past decade, Bixby said.
In her challenge to Clark's citation, Bixby pointed to a long line of U.S. Supreme Court decisions saying that governmental restrictions on free speech must be narrowly tailored to achieve legitimate aims, like public safety and traffic control.
During oral arguments on the case in May, Louisiana Deputy Solicitor General Colin Clark (no relation to Lawrence) said there was nothing unreasonable about funneling artists into a few areas in the historic, tourist-clogged French Quarter to maximize the city’s economic potential.
Both sides agreed that there was nothing to stop artists from displaying their creations as long as they didn't sell them.
The Supreme Court granted Bixby’s motion to quash the affidavit against Lawrence Clark. That means Clark won’t have to pay a fine.
But Clark won't get to enjoy his newfound freedom to sell art outdoors himself: He has since moved to Atlanta, Bixby said.
The high court's decision drew a dissent from Chief Justice Bernette Johnson, the sole New Orleanian on the court. Joined by Justice Jefferson Hughes, she said the majority failed to draw a distinction between commercial sales and pure free speech.
“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,” she said.
Johnson also fretted that the decision will undermine the French Quarter's distinctive atmosphere.
“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,” she said. “A swarm of art sellers on city streets would also increase congestion and impede pedestrian and traffic flow, creating public safety concerns.”