Judge upholds beach town’s right to ban sale of art in city parks

Saturday, June 9, 2001

A federal judge recently upheld a Laguna Beach, Calif., ordinance that forbids any commerce in the city’s parks, a decision that artists there feel is an unconstitutional ban on art sales in public places.

Some artists worry that the decision might spark similar laws elsewhere. Other cities in California, they figure, could effectively end the sale of art in parks, on beaches or along sidewalks simply by restricting all commerce.

Michael Lavery, a Laguna Beach artist cited last year for selling his work at the city’s Heisler Park, challenged the ordinance, claiming it infringed on his First Amendment right to free expression. But U.S. District Judge Gary L. Taylor ruled last month that even though artists are protected under the First Amendment, the city has the right to control commerce in the parks.

Ken Frank, Laguna Beach’s city manager, praised Taylor’s ruling, noting that the core issue of Lavery’s lawsuit was commerce, not free speech. Frank said that in his 20 years working for Laguna Beach, no one had ever contested the ordinance, which had been in effect for at least that long.

Frank says the issue isn’t whether Lavery and others are allowed to paint in the park.

“Everyone agrees that anyone can paint (in the park),” he said in a telephone interview. “In fact, Mr. Lavery was up there at Heisler Park yesterday. The only issue is, he can’t sell things. You can’t rent kayaks, you can’t sell T-shirts or anything.”

But Lavery, in his lawsuit, contended that the city ordinance was so broad that it almost completely prevented the sale of art in Laguna Beach. He and other artists say that they can’t afford gallery fees as high as $20,000 a month, and thus must resort to peddling their creations along sidewalks and in parks.

Lavery says he plans to appeal Taylor’s ruling in the hope of setting a national test case on the issue.

At this time, however, there is no guiding court case concerning the sale of art on public property. But in 1996, the 2nd U.S. Circuit Court of Appeals in Bery v. New York determined that art, like newspapers and books, is a form of free speech that could be sold on New York City streets. The U.S. Supreme Court declined to hear the case on appeal.

In his May 17 ruling, Taylor determined the city’s ordinance was both fair and constitutional, saying the restrictions guarded against “discordant and excessive commercialism” in the parks and protected local businesses from “unfair competition presented by rent-free business enterprises.”

The judge, in his 11-page opinion, further stated that the artists enjoy other venues to sell their work, including the Internet and home-based studios.

“In a public forum the government may impose reasonable restrictions on time, place and manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of information,” Taylor wrote.

David Greene, an attorney with the First Amendment Project in Oakland, agreed that cities have the power to regulate commerce and gatherings within their borders. But he said that Taylor appears to have misapplied the time, place and manner test.

“I think that’s a wrong analysis in this case,” Greene said in a telephone interview. “You can’t have a time, place and manner restrictions that says ‘Never in this time, never in this place, never in this manner.’ “

He added that the Internet and a person’s private property were hardly substitutes for a public assembly.

“You can’t justify forbidding people from picketing on the courthouse steps by saying they could participate in someone’s backyard or someone’s auditorium,” Greene said.

Frank says the city offers one alternative venue — the Main Beach Cobblestone area — for groups to sell their message on T-shirts and other items.

“That’s available to anybody on a first come first served basis,” he said. “But you can’t sell used cars and such. It has to have a First Amendment purpose.”

Frank also noted that the city has been quite lenient with the current ordinance. He said officials dismissed the first citation against Lavery after meeting with the artist and his spiritual advisers.

“We figured he didn’t realize there was the ordinance,” he said. “But he went ahead with his lawsuit anyway.”

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