523 F.Supp.3d 641
S.D.N.Y.2021Background
- Plaintiffs are two trade organizations of art and antique dealers who buy and sell antique elephant and mammoth ivory; Defendant is the Commissioner of the New York State DEC.
- New York's "State Ivory Law" (N.Y. Env’t Conserv. Law § 11-0535-a) broadly bans sale/offer/purchase/trade/distribution of "ivory articles," but contains limited exceptions and authorizes DEC licenses.
- DEC licenses permit marketing by advertisement but the licensing regime bars physical in‑store display of ivory not eligible for intrastate sale (the "Display Restriction"); photographs may be shown if labeled that the item "Cannot be [P]urchased or Sold within New York State."
- Plaintiffs claim the Display Restriction violates the First Amendment (and raised preemption arguments earlier); they seek declaratory relief and an injunction; DEC sought dismissal and prevailed on summary judgment.
- Record evidence (DEC testimony, a 2016 study, and dealer declarations) shows a steep decline in ivory displayed and commerce in New York after the law and that some dealers shipped ivory out of state because of the restriction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of review for the Display Restriction | Content‑based speech should trigger strict scrutiny | Restriction regulates commercial speech; Central Hudson intermediate scrutiny applies | Central Hudson intermediate scrutiny governs (Second Circuit precedent controls) |
| Whether Display Restriction concerns lawful activity and serves a substantial state interest | Displaying ivory is protected expression | In‑store display is commercial speech; NY has a substantial interest in preventing illegal ivory sales | Prongs 1–3 satisfied (lawful activity; substantial interest; restriction advances interest) |
| Whether the restriction is "no more extensive than necessary" under Central Hudson (narrow tailoring) | DEC failed to produce studies; less‑restrictive alternatives (e.g., segregation & labeling) would suffice | Empirical proof not required; ban on physical display more effective at preventing quick illegal sales than segregation/labeling | Fourth prong satisfied; Display Restriction is not substantially broader than necessary |
| Relief sought (declaratory judgment / injunction) | Plaintiffs seek to void the law and enjoin enforcement | DEC seeks dismissal / judgment for the State | Court denied plaintiffs' motion and granted DEC summary judgment; case closed |
Key Cases Cited
- Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557 (establishes intermediate scrutiny test for commercial speech)
- Vugo, Inc. v. City of N.Y., 931 F.3d 42 (2d Cir. 2019) (confirms Central Hudson applies to commercial speech even if content‑based)
- Sorrell v. IMS Health Inc., 564 U.S. 552 (discusses heightened scrutiny for content/speaker‑based restrictions but does not displace Central Hudson for commercial speech)
- Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (upholds commercial‑speech display regulation where alternative avenues for communication remain)
- Rubin v. Coors Brewing Co., 514 U.S. 476 (requires evaluation of fit between legislative ends and means)
- Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469 (permits a "reasonable"—not perfect—fit for regulation limiting speech)
- Bad Frog Brewery v. N.Y. State Liquor Auth., 134 F.3d 87 (2d Cir. 1998) (shows that regulations failing to advance state interest or that have obvious, less‑restrictive alternatives can fail Central Hudson)
- Safelite Grp., Inc. v. Jepsen, 764 F.3d 258 (2d Cir. 2014) (government need not adopt least restrictive means to further legitimate interest)