City of New Orleans v. Lawrence Clark, 251 So. 3d 1047

Background

Lawrence Clark was cited for selling his artwork on a neutral ground (Decatur & Esplanade) in New Orleans under Municipal Code §110-11, which generally bans outdoor retail sales on city property except in limited French Quarter zones where artist permits (A, B, C) are available.
Clark moved to quash the charging affidavit, arguing §110-11 unconstitutionally burdens First Amendment protected artistic expression; the Municipal Court and Criminal District Court Appellate Division denied relief; the Fourth Circuit denied a writ; the Louisiana Supreme Court granted review.
The City defended §110-11 as a content-neutral time, place, and manner restriction designed to preserve the French Quarter’s character, promote tourism/economic interests, protect public safety, and control street commerce.
The parties disputed whether Clark’s activity was commercial speech (subject to lesser protection) or expressive/artistic speech (full First Amendment protection) and whether the ordinance was narrowly tailored and left ample alternative channels.
The Louisiana Supreme Court concluded the neutral ground is a traditional public forum, Clark’s sale was protected artistic expression (not merely commercial speech), and §110-11 is content neutral but is not narrowly tailored and fails to leave ample alternative channels; it struck the ordinance and granted Clark’s motion to quash.

Issues

Issue	Plaintiff's Argument (Clark)	Defendant's Argument (City)	Held
Whether §110-11 burdens First Amendment–protected artistic expression	Clark: Selling original art is expressive conduct protected by the First Amendment; the ordinance effectively bans outdoor art sales citywide except narrowly defined French Quarter areas	City: Sales are commercial activity or, at most, regulable expressive activity; the ordinance is a content-neutral time/place/manner rule serving public safety, aesthetics, and economic interests	Held: Clark’s sales are protected expressive conduct (not merely commercial speech); First Amendment applies
Whether the ordinance is content neutral	Clark: Ordinance functions to exclude non-French Quarter artists and thus burdens speech geographically	City: Ordinance targets mode (retail sales) and locations, not message; it is content neutral	Held: Ordinance is content neutral
Whether the ordinance is narrowly tailored to serve a significant government interest	Clark: City made no tailored, evidence-based adjustments (e.g., distance-from-road, number limits); outright ban is overbroad	City: Preserving French Quarter character, safety, and local commerce are significant interests; limiting sales to tourist core is a reasonable means	Held: Although interests are significant, the ordinance is not narrowly tailored and is overbroad
Whether the ordinance leaves ample alternative channels for communication	Clark: Sales are entirely banned outside designated French Quarter zones, so no adequate alternative geographic channels exist	City: Alternative channels exist (display without sale, indoor sales, permits in French Quarter, other dissemination methods)	Held: Ordinance fails to leave ample alternatives; violates First Amendment

Key Cases Cited

Gitlow v. New York, 268 U.S. 652 (incorporation of free speech to states)
Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (commercial speech doctrine and protection for speech that proposes transactions)
Riley v. National Fed’n of the Blind of N.C., Inc., 487 U.S. 781 (paid speech remains protected)
Clark v. Community for Creative Non-Violence, 468 U.S. 288 (time, place, manner framework for public forums)
Ward v. Rock Against Racism, 491 U.S. 781 (content-neutral TPM restrictions must be narrowly tailored to significant interests and leave ample alternatives)
Kokinda v. Postal Service, 497 U.S. 720 (distinction between solicitation/sales and pure distribution of information)
City of New Orleans v. Dukes, 427 U.S. 297 (municipal interest in protecting tourist areas and local economy)
ACORN v. City of New Orleans, 600 F. Supp. 16 (E.D. La. 1984) (holding a complete neutral-ground solicitation ban overbroad under TPM analysis)