Circuit Upholds NYC Rules on Art Sales in the Parks
Regulations governing the sale of artworks and books in New York City parks do not violate the First Amendment, the U.S. Court of Appeals for the Second Circuit ruled Wednesday.
The circuit said that regulations passed in 2010 to deal with an increase in vendors selling "expressive matter" in Union Square, parts of Central Park and other busy parklands are valid, content-neutral time, place and manner restrictions that do not run afoul of the right to free speech.
The court, in Lederman v. New York City Department of Parks and Recreation, 12-4333-cv, upheld a 2012 grant of summary judgment to the city by Southern District Judge Richard Sullivan (NYLJ, Oct. 3, 2012).
The court also articulated a standard for the "exceptional circumstances" that must exist to depose high-ranking public officials, as it ruled Sullivan was also correct to issue a protective order barring the plaintiff vendors from deposing Mayor Michael Bloomberg and former Deputy Mayor Edward Skyler.
Judges Jose Cabranes (See Profile), Peter Hall (See Profile) and Denny Chin (See Profile) issued their decision Wednesday after taking submissions in the case on Aug. 23. Chin authored the court's opinion.
The city revised its vending regulations, R.C.N.Y. §§1-02, 1-05 in 2010 to allow vendors to generally vend in most city parks without a permit, subject only to restrictions on the size and placement of their vending tables.
But in overcrowded, highly-sought after venues—Union Square, Battery Park, High Line Park and portions of Central Park —the amended regulations designated only a limited number of slots on a first-come, first-served basis.
Plaintiffs Robert Lederman and Jack Nesbitt are visual artists who have sold their works on sidewalks and public parks for years and have repeatedly challenged on First Amendment grounds the authority of the Parks and Recreation Department to regulate sales.
Lederman and Nesbitt argued before Sullivan, and then the circuit, that the new vending regulations were heavy-handed, content-based restrictions that the city could not justify. Their argument failed to persuade the Second Circuit, with Chin noting that the regulations "apply to all expressive-matter vendors, regardless of the message the vendors' wares convey."
"They were passed not in an attempt to suppress vendors' ability to market their wares, but to fill a gap in the larger regulatory scheme governing vending on Parks Department property," Chin said.