Expressive merchandise and the First Amendment in public fora.

• Author: Blake, Genevieve

INTRODUCTION

People create expressive materials all the time, in endless variety. These materials may express political or ideological affiliation, aspirations, attempts at persuasion, social or cultural commentary, religious devotion or righteousness, or even private assertions of identity, passion, and dread. "Expression," commonly defined as "an act, process, or instance of representing in a medium," (1) is broad enough to include both a boisterous parade of thousands (2) and an individual's secret diary. (3) Some expressions are and always remain private, but those that enter the public sphere may come into contact with--and conflict with--the expressions of others, and the rules and regulations of social intercourse. (4) The desire to make public expressions is not limited to individuals or groups with a persuasive or proselytizing purpose; expressions may be aired in public simply as an assertion of self or to create awareness or confrontation. (5) Public expressions can take many forms, such as parading, rallying, distributing leaflets, (6) hanging posters, (7) giving soapbox speeches, (8) public musical performance, (9) and selling ex materials, (10) some of which have found protection under the "free speech" clause of the First Amendment of the United States Constitution. (11)

Cities, municipalities, and other kinds of local governments have the responsibility for allocating and maintaining public space so that it can be used by the citizenry that pays for it, without trampling the individual rights of the citizens who want to make such use. (12) Since two parades may not occur at the same time in the same place, cities must necessarily regulate the use of public space in such a way that at times inconveniences, delays, or mutes some public expression. (13) From this fact of civic responsibility, a judicial doctrine has developed to permit regulations on the time, place, and manner of public speech protected by the First Amendment. (14) The test, which will be discussed in greater detail below, generally permits cities to create reasonable restrictions on the time, place, and manner of public expression, so long as the restrictions do not touch the content of the expression, and are "reasonable." (15) What is reasonable depends in part on the forum at issue; (16) this Comment will focus on contentions over what are known as "traditional public fora" such as streets and sidewalks. (17) Time, place, and manner restrictions on the use of traditional public fora are subject to intermediate scrutiny (18) by the courts, which requires a determination as to whether the regulation is narrowly tailored to promote a city's legitimate interests, and whether there are adequate alternatives for people affected by the regulation to conduct their expressive activity. (19) Cities have an interest in limiting the number of people expressing themselves in public areas because unrestrained expressive activity could lead to uncontrollable conflict between individuals or groups over space, volume, aesthetics, equal access, viewpoint, and other points of contention. (20) Thus, there is conflict between those who want access to public spaces in which to conduct expressive activities, like sidewalks, and the cities in charge of maintaining those sidewalks that wish to exercise control and restraint on that expressive activity--not necessarily because of the substance of the expression, but merely because the expression exists.

Courts have struggled to strike a balance between the interests of individuals and cities with the application of intermediate scrutiny to content-neutral time, place, and manner restrictions, and several variations have emerged. (21) This Comment will examine the breadth of those approaches as they affect the determination of what expression triggers First Amendment protection. This issue is timely in light of a recent decision handed down from the Second Circuit Court of Appeals, Mastrovincenzo v. City of New York. (22) The public expression at issue in that case was the plaintiffs' creation and sale of hats, which the plaintiffs individually adorned by painting them in a graffiti style. (23) The City had barred the plaintiffs from displaying and selling their hats on the sidewalks within the framework of a larger scheme to regulate street vending, which it claimed "impedes the flow of pedestrian traffic ... and ... creates the potential for tragedy." (24)

Part I of this Comment will discuss the statutory framework for the regulation of sidewalk vending in New York City, and offer background information on the intersection of urban arts and First Amendment theory. Part II will examine in detail the interests on both sides of the Mastrovincenzo case, and the balance struck by the Second Circuit's ruling. Parts III and IV will compare how the Second Circuit's approach to delineating the scope of First Amendment protection differs from those of other federal courts on the more limited issue of public expression that does not fit into traditional models. The term "traditional models" indicates written or spoken language of a persuasive, discursive, or journalistic nature that has historically enjoyed the strongest form of judicial protection. In making this comparison, this Comment will specifically examine whether the definition of protected expression has widened to include works of visual art, and give special attention to those works that push the boundaries of historically favored media and genre.

In deciding what kinds of expressive materials may fall within the category of protected speech, the Ninth Circuit has developed a test that requires the protection of things bearing a "religious, ideological, philosophical or political message," as identified by court examination. (25) This differs from the new two-step test adopted by the Second Circuit, which requires a judge--in the case of works that are not paintings, photographs, sculptures, or prints--to first balance a work's expressive qualities against any utilitarian function the work might have, and then, if expression outweighs utility, to decide if the work has enough overall expressivity to qualify for First Amendment protection. In the Second Circuit, paintings, photographs, prints, and sculptures are thought to be always inherently expressive, and thus do not require analysis by a court. (26) While the Ninth Circuit test either ascribes protection or does not, the Second Circuit test carves out a newly available classification for works that are not full "expression," but which have a "predominantly expressive purpose," entitling them to a thinner layer of protection. (27) Both approaches are to some extent grounded by a wish to articulate a particular, protectable message. (28) In practice, this means that a mass-produced print--of a landmark building for example--is automatically entitled to full constitutional protection in New York City, and the City may not enforce its vending-licensing regulations against any seller of such print. In San Francisco, however, an artist's work is only entitled to protection if the work she wishes to display and sell expresses one of the above mentioned messages. The categories are, however, very broadly interpreted. Back in New York, an artwork that does not fit into the above mentioned four media categories is subject to an amorphous judicial test of expressiveness. Any artwork with an element of functionality is presumptively inert, and unless its expressive qualities are found to outweigh its utility, it will not be constitutionally protected. Even if it is found predominantly expressive, it is only due a subordinated level of protection. (29)

Ultimately, Part V will argue for a re-thinking of how courts evaluate the scope of First Amendment protection and municipal regulation of expressive activity. In light of the Mastrovincenzo case, a re-evaluation of what should and should not be protected under the banner of "free speech" is necessary, because, as argued below, some judges have strayed far from the issue of expression in the course of pursuing judicial and administrative expediency. Part of the problem with this shift of judicial attention lies with faulty assumptions grounded in a muddled "marketplace of ideas" theory of the First Amendment that both undervalues certain contemporary expressive activity and threatens the validity of existing First Amendment protections for visual expressive works. Finally, this Comment will offer a new way of examining regulations of public expressive activities that draws from a "self-realization" theory of the First Amendment.

1. REGULATION OF EXPRESSIVE ACTIVITIES IN NEW YORK CITY'S PUBLIC FORA

   The ennobling of public space is part of democratic culture, ancient and modern. (30) The Greek agora has been described as "the place of citizenship, an open space where public affairs and legal disputes were conducted" as well as "a marketplace, a place of pleasurable jostling, where citizens' bodies, words, actions and produce were all literally on mutual display." (31) Yet the Greek agora, like many American public spaces today, were never really free; only citizens with access to private property and power were able to participate without mediation. (32) While today's urban sidewalks are "largely open to all corners," (33) the owners of private property abutting the sidewalks may have substantial influence over what kind of expressive activity takes place there. (34)

   Sidewalk vending, for example, has been regulated and sometimes prohibited in the United States since the nineteenth century. (35) New York City Mayor Rudolph Giuliani "declared war" on street vending in the mid-nineties, as part of his larger "quality of life" campaign for urban renewal. (36) The New York City Council has taken the position that unregulated sidewalk vending has "a pernicious effect on both the tax base and economic viability of the City," in part because unlicensed...