Case NameMastrovincenzo v. City of New York 
Citation: 435 F.3d 78 (2006) 
TopicsTime, Place and Manner Restrictions; Public Forum

Street vendors of clothing painted with graffiti challenged a New York City ordinance which prohibits the selling of goods and services on city sidewalks without a license. The District Court preliminarily enjoined the city from enforcing the provision. On appeal, the Second Circuit held that:

a) serves a compelling governmental interest in reducing urban congestion for the convenience and safety of its citizens, in maintaining the tax base and economic viability of the City, and in preventing the sale of stolen, defective or counterfeit merchandises; and

b) is narrowly tailored and leaves plaintiffs with ample alternative channels of communication. Artists can add their names to the waiting list, they are free to distribute their art to the public free of charge, they can enlist licensed vendors to sell their clothing, and they can display and sell their works at galleries, clubs, trade shows, and in freelance jobs for both individual and corporate clients.

  1. The vendor’s sale of painted clothing was protected expression under First Amendment since the clothing serves a predominantly expressive purpose and since the plaintiff’s primary motivation for producing and selling the items is self-expression.
  2. The ordinance was content-neutral as a “time, place and manner” restriction, invoking intermediate First Amendment scrutiny.
  3. The ordinance does not violate the vendor’s First Amendment rights, since it: 
  4. The vendor’s items of merchandise were not “paintings” within the meaning of a previous consent decree (see Bery v. City of New York, No. 94 Civ. 4253 (MGC) (S.D.N.Y. Oct. 30, 1997)) enjoining enforcement of ordinance against sellers of paintings. The Court disagrees that the term “paintings” in the Bery injunction “refers to the entire universe of goods to which paint may be applied.” Instead, it interprets “paintings” to apply only to the discrete category of painted canvases.

This case is significant for its limitation on the meaning of “paintings” in the Bery injunction. As a result of this interpretation, the protection under the Bery injunction is severely limited, and “paintings” now only applies to painted canvases.

These materials are not intended, and should not be used, as legal advice. They necessarily contain generalizations that are not applicable in all jurisdictions or circumstances. Moreover, court decisions may be superseded by subsequent rulings, and may be subject to alternative interpretations. Corrections, clarification, and additions are welcome here.