121 F.4th 423
2d Cir.2024Background
- Plaintiffs, organizations representing art and antique dealers, challenged New York State's Ivory Law, which restricts the sale and display of ivory products, alleging federal preemption and First Amendment violations.
- The State Ivory Law is more restrictive than federal law (Endangered Species Act, ESA) in its exceptions: it permits only antiques with less than 20% ivory and has no "de minimis" exception (which federal law provides).
- Plaintiffs were prohibited under their state-issued license from physically displaying for sale any ivory item not eligible for intrastate sale (the "Display Restriction") but could advertise with disclaimers.
- The District Court dismissed the preemption claim and granted summary judgment to the state on the First Amendment claim.
- On appeal, the Second Circuit affirmed the dismissal of the preemption claim, but reversed on the First Amendment, finding the Display Restriction violated commercial speech rights.
- Judge Sullivan dissented, arguing the state law was preempted by the ESA and that the majority misinterpreted exemption/exception distinctions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the State Ivory Law is preempted by the ESA | State law prohibits transactions the ESA specifically allows via its exceptions. | The ESA's preemption clause only bars state laws that conflict with individual permits/exemptions, not general exceptions. | Not preempted; state law is allowed unless it blocks individualized ESA grants. |
| Whether the Display Restriction violates the First Amendment | Restricts protected commercial speech by banning physical display of federally lawful items. | The Display Restriction is a permissible, narrowly tailored regulation to prevent illegal sales. | Restriction is overbroad; violates First Amendment protections for commercial speech. |
| Standard of review for commercial speech restriction | Strict or at minimum intermediate scrutiny applies. | At most, intermediate scrutiny under Central Hudson test applies. | Applied intermediate scrutiny; State failed fourth prong (overbreadth). |
| Whether physically displaying ivory items constitutes protected speech | Yes; display contains a communicative element related to lawful sales. | Conceded for purposes of litigation; did not dispute it was protected speech. | Court accepted concession but noted no binding precedent set. |
Key Cases Cited
- Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557 (U.S. 1980) (establishes the test for regulations on commercial speech)
- Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (U.S. 2001) (upholds some restrictions on the display of tobacco under commercial speech doctrine)
- Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363 (U.S. 2000) (principles of conflict preemption)
- Fox v. Board of Trustees of State Univ. of N.Y., 492 U.S. 469 (U.S. 1989) (narrow tailoring requirement for commercial speech restrictions)
- Rubin v. Coors Brewing Co., 514 U.S. 476 (U.S. 1995) (reasonable fit requirement in commercial speech cases)
- Bad Frog Brewery, Inc. v. N.Y. State Liquor Auth., 134 F.3d 87 (2d Cir. 1998) (commercial speech protection and less restrictive alternatives)
- Horne v. Coughlin, 191 F.3d 244 (2d Cir. 1999) (effect of concessions and waivers on appellate review)