New Orleans Times-Picayune - First Amendment Case

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This is a First Amendment case implicating the rights of artists in New Orleans that I had the pleasure of working on while serving as a judicial extern in Federal District Court.

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New Orleans Times-Picayune - First Amendment Case

  1. 1. New Orleans gets OK to enforce ban on selling art prints in Jac... http://blog.nola.com/news_impact/2009/07/new_orleans_gets_o... New Orleans gets OK to enforce ban on selling art prints in Jackson Square Posted by rvargas July 27, 2009 07:00AM Eliot Kamenitz / The Times- PicayuneArtist Jim Maurer of Mobile, Alabama hangs up on the fence outside Jackson Square, a just completed painting of Marilyn Monroe on Monday, June 15, 2009. A federal judge recently upheld New Orleans' law banning the sale of art prints on the sidewalks around Jackson Square to protect the colony of artists that sell their original paintings and drawings there. A federal judge has cleared the way for New Orleans to enforce its law banning artists from selling prints on the sidewalks around Jackson Square (view live Jackson Square webcam ). U.S. District Judge Ivan Lemelle said the city is within its rights in permitting the display and sale only of works that "have been accomplished essentially by hand" and without the use of "any mechanical or duplicative process." (See more New Orleans art news) Although Lemelle had suggested three years ago that the city should adopt a "more narrowly tailored ordinance" than a total ban on prints, the City Council refused to go along with his idea. In a 14-page decision last week rejecting a suit by artist Holly Sarre challenging the city's law, Lemelle said he had become "convinced that allowing print sales would subvert the creative, improvisatory interplay between working artists and audiences that is inherent in the Jackson Square experience." However, he said, the issue may not be closed. "We predict . . . this matter will be revisited" as more evidence becomes available over time about whether the city's restriction is justified, Lemelle wrote. Artists have been exhibiting and selling their work around the historic square for generations, and for 1 of 10 7/27/09 10:18 AM
  2. 2. New Orleans gets OK to enforce ban on selling art prints in Jac... http://blog.nola.com/news_impact/2009/07/new_orleans_gets_o... many years the city has banned the sale of anything but "original" paintings and drawings. Sarre began several years ago to sell $35 prints of her more expensive acrylic-on-canvas renderings of New Orleans scenes. Her actions roused the ire of other Jackson Square artists, who called on the police to enforce the law prohibiting the sale of prints. Sarre went to court in 2005, saying the law violates her rights of free speech under the First Amendment and of "basic economic liberty" under the 14th Amendment. The ban on prints, her suit said, "denies her the ability to pursue her chosen livelihood and is not rationally related to public health, safety and welfare concerns." The city responded that Sarre has other places to sell her prints, such as galleries or the French Market's flea market, and that the city has a legitimate interest in preserving a thriving colony of practicing artists at Jackson Square. If artists such as Sarre were allowed to sell prints at lower prices than original works bring, the city said, they would inevitably take the lion's share of the business, driving out many of the artists producing original works and thus diluting the square's attractiveness to tourists and its value as part of the French Quarter's overall appeal. In July 2006, Lemelle ordered the city to consider allowing some artists at the square to sell prints of their own works while ensuring that "a substantial majority" of total sales continued to involve original works. He said he thought such a regulation "could be fashioned without harm" to the square's "tout ensemble, " or overall atmosphere and appearance, which he said the city "has a genuine interest in maintaining." In April 2007, the council considered amending the law to allow every Jackson Square artist to "sell reproductions of his or her own paintings, sketches and drawings, " provided they did not generate more than 20 percent of the artist's total sales. Another idea was to restrict print sales to a limited edition of 100 signed and numbered copies of an original painting or drawing. Tommy Milliner, the attorney for the Jackson Square Artists Association, told the council that major French Quarter business and residential organizations all supported the total ban on prints. Removing it would lead to the "extermination" of the square's artists colony, he warned. In the end, and at the urging of Councilman James Carter, whose district includes the French Quarter, the council decided unanimously to stick with the total ban on prints. Councilwoman Stacy Head said the city couldn't enforce a law designating what percentage of an artist's sales could be from what type of art or setting up other complex rules. "We need to protect what's unique about the French Quarter, " Councilman Arnie Fielkow said. The council's arguments appeared to carry weight with Lemelle. Although the total ban "may not be the most narrowly tailored regulation possible, judicial deference should be afforded" to the council's 2 of 10 7/27/09 10:18 AM
  3. 3. New Orleans gets OK to enforce ban on selling art prints in Jac... http://blog.nola.com/news_impact/2009/07/new_orleans_gets_o... position that allowing print sales at Jackson Square would "threaten the survival of a unique and historical artists colony, " he said. He said Sarre and other artists wishing to sell prints can do so at the French Market, in print shops or on the Internet. The city has generally refrained from enforcing the ban on prints at the square while the lawsuit has been pending, but it is now free to resume enforcement. Bruce Eggler can be reached at beggler@timespicayune.com or 504.826.3320. • More metro New Orleans news Categories: City Hall, N.O., Entertainment, Interact, News, News: New Orleans, The Arts Comments Hermicane says... I mis-read the headline, thinking the ban was on art. You can buy prints anywhere, let's leave Jackson Square to the real artists like this law wants. (FINALLY--a law I can agree with!) Posted on 07/27/09 at 7:37AM rhythmnola says... I'm sorry, but I don't see what the Three Stooges have anything to do with Jackson Square and it's history. And God knows we have enough stooges at City Hall. So people that wish to buy celebrity prints and silkscreens can go somewhere's else. Posted on 07/27/09 at 7:44AM Candycan says... I am so glad (I am not an artist) that the artists on the square will sell only original art works. Keep the integrity of the artists' colony. Good call. Posted on 07/27/09 at 7:44AM GreenOnions says... For once, I agree with you Hermicane. The artists producing their original works in and around Jackson Square are a part of our city's cultural tapestry. The street performers, fortune tellers, musicians, and artists are all some of the the many reasons why people visit our city. Entertaining visitors and selling artwork provides these folks with an honest living and the money they make is 3 of 10 7/27/09 10:18 AM
  4. 4. New Orleans gets OK to enforce ban on selling art prints in Jac... http://blog.nola.com/news_impact/2009/07/new_orleans_gets_o... cycled right back into our economy. Why would we want to threaten this by allowing mass-produced stuff to be sold right alongside them? There are dozens of shops where prints are readily available elsewhere in the Quarter. Posted on 07/27/09 at 7:45AM feedupnola says... I agree. This is a good law. If we allow prints the next thing hanging on the fence in Jackson Square will be T-Shirts from Canal Street and the French Market vendors. We all can agree we don't need anymore of these vendors here in the city. Posted on 07/27/09 at 7:46AM feedupnola says... I agree. This is a good law. If we allow prints the next thing hanging on the fence in Jackson Square will be T-Shirts from Canal Street and the French Market vendors. We all can agree we don't need anymore of these vendors here in the city. Posted on 07/27/09 at 7:47AM underdike says... I like art. I like looking, hearing, tasting, feeling and smelling art. I like to try to make art. Sometimes I make art not everyone would describe as art. But, really, this isn't really about art. This is about tradition and trying to preserve something precious - painters displaying paintings in Jackson Square. The painters do add to the positive character of Jackson Square. Aside from the ice cream cart, IMHO, the hucksters and jivvers, including scam artist palm reader, fortune tellers, astrologists and the like DETRACT from the positive character. So do display/sales of reproductions - next they might sell unboxed chia pets as art. Although I'm really a huge fan of photography, I completely understand why reproductions, rather than original hand made art, shouldn't clutter up the square. I believe it is best for the future of our city to try to make it only ok to display/sell original hand made paintings/pastels/charcoals/pencil sketches on paper, canvas, slate, what have you if you want to do your thing in Jackson Square. Otherwise, Mr. or Ms. Artist, use the flea market or a gallery. Please take no offense, but reproduced art, is not the type of art our community needs to display in Jackson Square. Posted on 07/27/09 at 7:49AM feedupnola says... I agree with this law. If we allow prints of works here the next thing hanging on the fences in Jackson 4 of 10 7/27/09 10:18 AM
  5. 5. New Orleans gets OK to enforce ban on selling art prints in Jac... http://blog.nola.com/news_impact/2009/07/new_orleans_gets_o... Square will be T-Shirts from the French Market and Canal Street Vendors. We can all agree we don't need anymore of these vendors here in the city. Posted on 07/27/09 at 7:49AM Hermicane says... GreenOnions, altho I can't recall ever disagreeing with you (unless you had a different login) your post elaborated exactly on why this is a good thing. Well said! Posted on 07/27/09 at 7:57AM Astrid says... It should be original art work only and it should be sold only by the artist. The artist should demonstrate on the spot that he/she can and does produce the art. Portraits on display to show the artist style and ability should be done by the artist and not someone else so that the ones getting the work will have the same quality or lack of in their portrait. Each Pen and ink should be done in their entirety and not just a few lines added onto a photo copy. Posted on 07/27/09 at 8:01AM COLONELJPSO says... ART PRINTS OR ORIGINAL PAINTED ART IS NO DIFFERENT IN TERMS OF EQUAL IT'S STILL ART.... AND TO TELL ONE PERSON THEY CANNOT DISPLAY AND SELL THEIRS ,BUT IT'S OK FOR OTHERS TO DO THE SAME IS A CLEAR VIOLATION OF EQUAL PROTECTION UNDER THE LAW AND POSSIBLY VIOLATES FREE SPEECH CLAUSES ALSO ... APPEAL LEMELLE'S DECISION ALL THE WAY TO THE SUPREME COURT YOU WILL WIN...... Posted on 07/27/09 at 8:01AM COLONELJPSO says... ART PRINTS OR ORIGINAL PAINTED ART IS NO DIFFERENT IN TERMS OF EQUAL IT'S STILL ART.... AND TO TELL ONE PERSON THEY CANNOT DISPLAY AND SELL THEIRS ,BUT IT'S OK FOR OTHERS TO DO THE SAME IS A CLEAR VIOLATION OF EQUAL PROTECTION UNDER THE LAW AND POSSIBLY VIOLATES FREE SPEECH CLAUSES ALSO ... APPEAL LEMELLE'S DECISION ALL THE WAY TO THE SUPREME COURT YOU WILL WIN...... Posted on 07/27/09 at 8:01AM 5 of 10 7/27/09 10:18 AM
  6. 6. New Orleans gets OK to enforce ban on selling art prints in Jac... http://blog.nola.com/news_impact/2009/07/new_orleans_gets_o... yhnguik says... Man, this hurts.....where am I gonna' sell my Saints' and Zephyrs'sports cards and the Elvis posters ???? LAWS SUCK ! Posted on 07/27/09 at 8:07AM uptownray says... good law. good job city council and judge! Posted on 07/27/09 at 8:10AM nolaw504 says... this is so against the first amendment. this law will be struck down on appeal. I want my right to buy posters of Michael Jackson in Jackson Square. Posted on 07/27/09 at 8:14AM NOLAman123 says... This is absolutely wonderful! I am glad the judge agreed with the city in support of original works of art. Protecting Jackson Square from turning into another knock off, tacky t-shirt shop selling cheap prints on cardboard. Posted on 07/27/09 at 8:17AM NOLAman123 says... This is absolutely wonderful! I am glad the judge agreed with the city in support of original works of art. Protecting Jackson Square from turning into another knock off, tacky t-shirt shop selling cheap prints on cardboard. Posted on 07/27/09 at 8:17AM nolaanarchy says... While I can agree to the logic of keeping the space available for people who produce their own art, I could see the argument for an artist to sell prints of their own art only, provided they can display the original. This would allow them an additional income stream (I know artists who make 90% of their income from prints of their own work because more people - especially tourists - will spend $30-$60 on the spot than will spend $300-$2500) 6 of 10 7/27/09 10:18 AM
  7. 7. New Orleans gets OK to enforce ban on selling art prints in Jac... http://blog.nola.com/news_impact/2009/07/new_orleans_gets_o... I also think that photographers are getting the pointy end of the stick. Photographers are artists (and like all artists there are good ones and not-so-good ones) and there are some amazing and very "artistic" photos of New Orleans being created. These artists are not necessarily making any different income than those who paint, sketch, sculpt or scribble. Some even mix their mediums for new perspectives. This law needs some tempering with another New Orleans tradition - "neutral ground". Posted on 07/27/09 at 8:27AM replay2u2 says... Good law I hope it will be aggressively enforced. Jackson Square is looking more and more like "Jittney Jungle" Posted on 07/27/09 at 8:32AM midcity42 says... I agree with the print ban. I also do not believe that the "artist" from Alabama's work is anything more than quickly made commercial-grade quick money for the "artist" rather than contributing a substantial perspective upon reality (art.) Copying popular people and movies (other people's art) and turning them into black-and-white screens with maybe a touch of color is not unique, in fact it rips off many original works and ideas. Sorry. I want less of that cranked-out dorm-room crap hanging from the fences of the Vieux Carre. Posted on 07/27/09 at 8:39AM 5inchheels says... I like the law and the ruling. You can buy prints and photos all over town. Jackson Square should remain the preserve of working artists. It's part of New Orleans's (fast diminishing) charm. Posted on 07/27/09 at 8:41AM midcity42 says... About the posters who claim that artists can sell posters and the like on th streets: They can find a venue for their wares. If they are at the point that they can make commercial-grade copies of their work it is time for the artists to get off the streets and find a gallery or other commercial outlet. The street should be starting-off point and not a final destination. Thank God the city understands this point. Posted on 07/27/09 at 8:42AM 7 of 10 7/27/09 10:18 AM
  8. 8. New Orleans gets OK to enforce ban on selling art prints in Jac... http://blog.nola.com/news_impact/2009/07/new_orleans_gets_o... leveeliar says... Good law. Let's start enforcing it immediately for the upcoming tourist season. Let's also get rid of the fortune tellers that are all over the place. If these so called psychics are legitimate, make the get licensed like real estate agents, insurance agents, attorneys, doctors and everybody else. Make them take a real simple test and even then they won't pass. Posted on 07/27/09 at 8:46AM nolalou says... Bravo, Judge Lemelle! Artists can sell their prints in galleries, on line, out of their homes, etc. But selling them in a legally- established artists' colony was cheapening the colony as well as the Square. I hope this will mean a resurgence in the true art of Jackson Square! Posted on 07/27/09 at 8:47AM noladude51 says... While I agree with this action that original art will be protected in Jackson Square, there's another issue here that is much more important for all of us as citizens: "Although Lemelle had suggested three years ago that the city should adopt a "more narrowly tailored ordinance" than a total ban on prints, the City Council refused to go along with his idea." Why in the hell is a judge suggesting anything? His job is to interpret the law. No one should care about his opinions on the culture of the city or on business implications. That's for the politicians and citizens to worry about. If the laws of New Orleans say it's this or that, end of story!! There was no middle ground here from the beginning.....no reproductions. Posted on 07/27/09 at 8:54AM tina50 says... Nice law for the artist I guess, but what about all the other panhandlers and fortune tellers that are in Jackson square? I guess this opinion was more about money and competition. But if you are talking about the tacky or sleaze factor, prints aren't the only contributor of that. Posted on 07/27/09 at 9:04AM soulinola says... I have to disagree with a part of this ordinance. I have friends who carve wood blocks, then make 8 of 10 7/27/09 10:18 AM
  9. 9. New Orleans gets OK to enforce ban on selling art prints in Jac... http://blog.nola.com/news_impact/2009/07/new_orleans_gets_o... prints from those blocks. The original is rarely for sale, and the prints are usually limited, numbered and signed. I do, however, agree that there are plenty of other venues for the sale of these items all over the city. Now.......where do tarot card readers fall in this art display? Posted on 07/27/09 at 9:07AM madscience says... Sure, this is a great law. It's kind of like the government controlled monopolies that cause us to only have Entergy as a choice for electricity, and Cox as a choice for cable. Since when does the government have the right to control everything? While Americans are chanting freedom, they fail to realize that we have been under a socialist-fascist dictatorship since Woodrow Wilson and FDR. Posted on 07/27/09 at 9:34AM bigfrankeee2 says... maybe the city coucil should spend more time worrying about all the murders in the city and quit worrying about the few artist why might lose a few sales Posted on 07/27/09 at 9:35AM hunni504 says... Is the sale of art prints strickly banned from jackson square or the french market as well. What about the artist's who created their own work of art and sell it in print for signed by themselves????? This would apply to all blue dog prints which we love so much Posted on 07/27/09 at 9:36AM RandyBadger says... When it come to art on theSquare it's too ba we can't legally define "talentless", "Copy-cat" or just plain old "Bad". Posted on 07/27/09 at 9:41AM 9 of 10 7/27/09 10:18 AM
  10. 10. New Orleans gets OK to enforce ban on selling art prints in Jac... http://blog.nola.com/news_impact/2009/07/new_orleans_gets_o... RandyBadger says... Ban Blue Dog and all such derivative superficial drivel that blatantly rips off tradition Black Naive style painiting, in order to hide the fact that hacks like Rodrigue and Dr. Bob have no talent or capacity for originial thought. Posted on 07/27/09 at 9:46AM jdkingbear says... uh huh, but leave the Square to the myriad of fake soothsayers, readers, palmists and all other sorts of charlatans who ply their trade in the dark? That is not art. Its bilking people and it makes a mockery of what was a lovely place to walk and enjoy real art. Do something about that. Posted on 07/27/09 at 9:56AM batterdip says... my neighbor has been painting on the square for over 30 years. Its how she raised her kids, cared for her grandkids, pays her house note and insurance. After a health crisis she was unable to keep up the pace and also began selling prints OF HER OWN WORK. She is an intergral member of this community and needs to sell these prints to get by. It hurts no one. Several artists with their own galleries on Royal St. sell both their originals and prints of their own work. Is this really an evil that needs stamping out? Posted on 07/27/09 at 10:00AM Footer 10 of 10 7/27/09 10:18 AM

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