Opinion
Civil Action No. 04-1349 Section "I" (2).
February 1, 2005
ORDER AND REASONS
Plaintiff, Marc C. Trébert, sued the City of New Orleans pursuant to 42 U.S.C. § 1983, asserting that §§ 110-121 through 110-132 of the City's Municipal Code violate his constitutional rights of free speech under the First Amendment and of economic liberty under the due process, equal protection and privileges and immunities clauses of the United States Constitution, as applied to the states through the Fourteenth Amendment. Complaint, Record Doc. No. 1. Plaintiff seeks injunctive and declaratory relief, nominal damages and attorney's fees.
Trébert filed a Motion for Partial Summary Judgment, in which he seeks a judgment in his favor on his First Amendment claim. Record Doc. No. 12. The City filed a timely opposition memorandum. Record Doc. No. 13. Plaintiff received leave to file a reply memorandum. Record Doc. Nos. 15, 16.
After this matter was referred to the undersigned Magistrate Judge for all proceedings and entry of judgment in accordance with 28 U.S.C. § 636(c) upon written consent of all parties, Record Doc. No. 26, the court held a status conference with counsel. Counsel for both parties agreed that disposition of the pending motion would be dispositive of the case, except for resolution of any requests to recover attorney's fees, and that trial will likely be unnecessary. Record Doc. No. 28.
Having considered the complaint, the record, the submissions of the parties and the applicable law, and for the following reasons, IT IS ORDERED that plaintiff's motion for partial summary judgment is GRANTED.
I. THE UNDISPUTED FACTS
Neither side has submitted any evidence in connection with the motion for partial summary judgment, although four exhibits were attached to plaintiff's verified complaint. Record Doc. No. 1. However, "[t]he parties to a stipulation are bound by the terms actually agreed upon, and the agreement is binding until modified." United States v. Alvarado Garcia, 781 F.2d 422, 427 (citations omitted), overruled in part on other grounds by United States v. Corral-Franco, 848 F.2d 536, 541 (5th Cir. 1988);accord Pegues v. Mississippi State Employment Serv., 899 F.2d 1449, 1456 (5th Cir. 1990); Browning v. Navarro, 743 F.2d 1069, 1080 (5th Cir. 1984).
Broadly construing their memoranda, the parties have stipulated to the following facts that appear in the record.
Trébert takes digital photographs, prints them and colors them with pastels. Plaintiff's Verified Complaint, Record Doc. No. 1, at p. 1.
The City granted Trébert a "Jackson Square A" permit dated January 6, 2004, which was to expire on December 31, 2004. Plaintiff's Exh. 3, attached to his complaint.
"Permit A" allows "the permittee to paint and sell works of art in that area defined as `the Jackson Square set-up area'." Municipal Code of the City of New Orleans § 110-121. The "Jackson Square set up area" is defined as "the area extending 20 feet from the Jackson Square fence on three sides and 5 feet on the Decatur Street side." Id.
"Permit A" allows its holder "to manually paint, sketch or draw on plain surfaces only in . . . [t]he Jackson Square artist set-up area."Id. § 110-123.
Trébert intends to make and sell art produced by digital technology,i.e., digital photographs that are colored with pastels. Plaintiff's Statement of Uncontested Material Facts, Record Doc. No. 12.
On January 13, 2004, plaintiff was cited by the New Orleans Police and summoned to the City of New Orleans Municipal Court to respond to a criminal misdemeanor charge of violating Section 110-121 of the Municipal Code. Plaintiff's Exh. 2, attached to his complaint.
On January 14, 2004, the Municipal Court temporarily enjoined Trébert "from selling [presumably within the Jackson Square A area only] any paintings, sketches or drawings produced by or with the assistance of a mechanical devices [sic] and with the use of any process used to duplicate an existing image," until February 3, 2004. Plaintiff's Exh. 4, attached to his complaint.
The court's order was extended until July 23, 2004. Complaint, at p. 4 ¶ 6.
The Municipal Code provides that artists may create and sell only "original" art along the Jackson Square fence. "Original means only those works produced and for sale by the artist which have been accomplished essentially by hand and precludes any mechanical or duplicative process in whole or part." Municipal Code § 110-121.
The ordinance prohibits plaintiff from selling, at his Jackson Square site, digital photographs that have been printed and colored because they are not within the law's definition of "original" art. Complaint, at p. 4 ¶ 8; Plaintiff's Statement of Uncontested Material Facts, Record Doc. No. 12.
The City agreed to dismiss the criminal citation against Trébert and to refrain from enforcing the ordinance against him until the instant lawsuit is resolved. Record Doc. No. 11.
II. THE UNDISPUTED LEGAL CONCLUSIONS
The parties agree on the following relevant legal conclusions.
The First Amendment applies to art. Plaintiff's memorandum in support of motion for partial summary judgment, at p. 3; defendant's memorandum in opposition, at p. 2.
The challenged ordinance is content neutral. Plaintiff's memorandum in support of motion for partial summary judgment, at p. 6; defendant's memorandum in opposition, at p. 2.
"[P]reserving the distinctive charm, character and tout ensemble of the [French] Quarter" is a significant governmental interest. Record Doc. No. 12, plaintiff's memorandum at p. 10; Record Doc. No. 13 defendant's memorandum at p. 2.
III. ANALYSIS
A. Standard of Review for Summary Judgment Motions
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but it is not required to negate elements of the nonmoving party's case. Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
When a moving party alleges that there is an absence of evidence necessary to prove a specific element of a case, the nonmoving party bears the burden of presenting evidence that provides a genuine issue for trial. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted."Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5th Cir. 1999) (citing Celotex, 477 U.S. at 322-23; quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)).
To withstand a properly supported motion, the nonmoving party who bears the burden of proof at trial must come forward with evidence to support the essential elements of its claim. National Ass'n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698, 712 (5th Cir. 1994) (citingCelotex, 477 U.S. at 321-23). "[A] complete failure of proof concerning an essential element of the nonmoving party's case renders all other facts immaterial." Celotex, 477 U.S. at 323.
The court must consider all evidence in the light most favorable to the nonmoving party. National Ass'n of Gov't Employees, 40 F.3d at 712-13. "Conclusory allegations unsupported by specific facts, however, will not prevent the award of summary judgment; `the plaintiff [can]not rest on his allegations . . . to get to a jury without any "significant probative evidence tending to support the complaint."'" Id. at 713 (quotingAnderson, 477 U.S. at 249).
"Factual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that an actual controversy exists." Edwards, 148 F.3d at 432; accord Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). "We do not, however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts." Id. (emphasis in original). "Moreover, the nonmoving party's burden is not affected by the type of case; summary judgment is appropriate in any case where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant." Id. (quotation omitted) (emphasis in original).
B. Standards for Content Neutral Regulation of Time, Place and Manner of Expression
"Congress shall make no law . . . abridging the freedom of speech. . . ." U.S. Const., amend. I. Freedom of speech is "among the fundamental personal rights and liberties which are protected by the Fourteenth Amendment from invasion by state action. Municipal ordinances adopted under state authority constitute state action and are within the ambit of the First and Fourteenth Amendments." Wexler v. City of New Orleans, 267 F. Supp. 2d 559, 564 (E.D. La. 2003) (Duval, J.) (citation omitted); accord City of Ladue v. Gilleo, 512 U.S. 43, 45 n. 1 (1994).
First Amendment protection "is not limited to written or spoken words, but includes other [media] of expression, including music, pictures, films, photographs, paintings, drawings, engravings, prints, and sculptures." ETW Corp. v. Jireh Pub'g, Inc., 332 F.3d 915, 924 (6th Cir. 2003) (citing Hurley v. Irish-American Gay, Lesbian Bisexual Group, 515 U.S. 557, 569 (1995); Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989); Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 578 (1977); Kaplan v. California, 413 U.S. 115, 119-20 (1973); Bery v. City of New York, 97 F.3d 689, 695 (2d Cir. 1996)). Commercial sale of expression does not deprive the expression of First Amendment protection. Id. at 925; Bery, 97 F.3d at 695.
The challenged ordinance in the instant case does not define the French Quarter (also known as the Vieux Carré). However, the United States Supreme Court found that
[t]he Vieux Carre of the city of New Orleans is the heart of that city's considerable tourist industry and an integral component of the city's economy. The sector plays a special role in the city's life, and . . . the New Orleans City Council [has the] power to enact ordinances designed to preserve its distinctive charm, character, and economic vitality.City of New Orleans v. Dukes, 427 U.S. 297, 299 (1976) (footnote omitted).
Jackson Square in the French Quarter
is a quintessential public forum where government may not prohibit all expressive activity. Public sidewalks, streets and parks have long been acknowledged as traditional public fora. . . . [T]he government's ability to restrict speech in these areas is limited. The level of scrutiny a court uses to review the applicable restriction depends upon whether the restriction is content-based or content neutral. . . . If the regulation in force is content neutral and also regulates time, place, and manner of expression, it must be narrowly tailored to serve a significant governmental interest, leaving open ample alternative channels of communication.Wexler, 267 F. Supp. 2d at 565-66 (emphasis added) (citing Perry v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983); Weinberg v. City of Chicago, 310 F.3d 1029, 1034 (7th Cir. 2002); International Soc'y for Krishna Consciousness of New Orleans, Inc. v. City of Baton Rouge, 876 F.2d 494, 497 (5th Cir. 1989)); accord Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984).
Trébert and the City agree that the ordinance at issue is content neutral and that it regulates the time, place and manner of display and sale of the works it defines as art. They also agree that "[p]reserving the distinctive charm, character and tout ensemble of the [French] Quarter" is a significant governmental interest. Record Doc. No. 12, plaintiff's memorandum at p. 10; Record Doc. No. 13, defendant's memorandum at p. 2.
The government bears the burden of establishing that its ordinance complies with the First Amendment. Hays County Guardian v. Supple, 969 F.2d 111, 118 (5th Cir. 1992) (citing Board of Trustees v. Fox, 492 U.S. 469, 480-81 (1989)). The parties have stipulated that the City of New Orleans has a significant governmental interest in preserving the historical and cultural ambiance of the French Quarter. Thus, the City bears the burden of proving that both the "narrowly tailored" and "ample alternative channels of communication" prongs are satisfied. Bay Area Peace Navy v. United States, 914 F.2d 1224, 1227 (9th Cir. 1990) (citingCommunity For Creative Non-Violence, 468 U.S. at 293 n. 5; City of Watseka v. Illinois Pub. Action Council, 796 F.2d 1547, 1551 (7th Cir. 1986), aff'd without opin., 479 U.S. 1048 (1987)).
First, "[t]o satisfy the narrowly tailored test, an ordinance need not be the least restrictive method for achieving the government's goal. Nevertheless, while a regulation does not have to be a perfect fit for the government's needs, it cannot substantially burden more speech than necessary." Weinberg, 310 F.3d at 1040 (citations omitted).
Second, "[a]n adequate alternative does not have to be the speaker's first choice. However, an alternative is not adequate if it foreclose[s] a speaker's ability to reach one audience even if it allows the speaker to reach other groups." Weinberg, 310 F.3d at 1041 (quotation and citations omitted); see also Bery, 97 F.3d at 698 (total ban on sidewalk art does not leave open alternative means of communication because alternative display in galleries or museums would not reach the same audience).
C. Trébert's Photographs Are Protected Speech
The City argues that Trébert's digital photographs are not entitled to First Amendment protection because they are not "art." Although volumes of evidence could have been submitted regarding whether photographs are art, no such evidence has been submitted in the instant case, and none need be. The question is not whether plaintiff's work is art, but whether it is "speech" within the protection of the First Amendment.
The City perhaps could find an expert to testify that modern photography is not art. To counter the City's argument, plaintiff could have presented ample evidence that the works of legendary photographers such as Ansel Adams, Diane Arbus, Henri Cartier Bresson, William Eggleston, Walker Evans, Dorothea Lange, Clarence John Laughlin, Man Ray, Alfred Steiglitz and Edward Weston, to name just a few who spring easily to mind, are considered art.
Moreover, if the City were able to present evidence to support its argument that no photographer who points a camera and shoots a scene from observable life can ever create art, plaintiff could counter with evidence of the myriad art museums, such as the Ogden Museum of Southern Art in New Orleans, see http://www.ogdenmuseum.org/index.html, and the New Orleans Museum of Art, see http://noma.org/html_docs/photo.html, that hold vast collections of photographs. Trébert might also introduce evidence of the art schools that teach their students about modern photographic techniques and that art history includes photography. See, e.g., Tulane University Undergraduate Catalogue 2004-2005, Department of Art (offering courses in Art History and Photography; Foundations of Art: Photography; Intermediate Photography; Advanced Photography: Chemical Processes; Advanced Photography: Digital Processes; Studio Photography; and History of Photography ("This course will examine the growth of photography's contribution to the visual arts, from its beginnings as a substitute for the skill of hand to its present status as an accepted art form. . . . Emphasis is placed upon the masterworks of photography, i.e., photographs made with such quality of vision that they have become works of art. . . .")) (emphasis added), at http://www.tulane.edu/%7Eadmincat/pdfcat/section0/lacomplete2_4_cl.pdf.
The courts have found that mechanically reproduced images are expression entitled to First Amendment protection. See ETW Corp., 332 F.3d at 919, 925, 937 (serigraphic and lithographic prints made from an original painting);Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180, 1185 (9th Cir. 2001) (altered still photograph from a movie); Bery, 97 F.3d at 695 (photographs and prints "always communicate some idea or content to" viewers); Cardtoons, L.C. v. Major League Baseball Players Ass'n, 95 F.3d 959, 933 (10th Cir. 1996) (parody baseball trading cards); Comedy III Prods., Inc. v. Gary Saderup, Inc., 21 P.3d 797, 800, 802 (Cal. 2001) ("charcoal drawings of celebrities used to create lithographic and silkscreen masters, which in turn are used to produce multiple reproductions in the form, respectively, of lithographic prints and silkscreened images on T-shirts. . . . are expressive works").
Based on these precedents and the undisputed facts, I find that Trébert's digital photographs, which he colors in pastels, are speech and are entitled to First Amendment protection. I next examine whether the City has met its burden to show that the ordinance is narrowly tailored to serve its significant governmental interest and, if so, whether the law leaves open to Trébert ample alternative channels of communication.
D. The Ordinance Is Not Narrowly Tailored to Serve a Significant Government Interest
The City has presented no evidence to sustain its burden to show that the ordinance is narrowly tailored to serve the City's significant interest in preserving the French Quarter's charm and authenticity.Weinberg, 310 F.3d at 1037; Bery, 97 F.3d at 697; Wexler, 267 F. Supp. 2d at 567. The City merely speculates that any less burdensome alternative would result in its interests being achieved less effectively and that "[t]he obvious effect of lifting the restriction would be the prospect that the area surrounding Jackson Square would become one big photography studio, with cardboard images of President Clinton and faux backgrounds of French Quarter scenes." Defendant's memorandum, Record Doc. No. 13, at p. 6.
The City also asserts that the law is narrowly tailored because "it does not prohibit duplicative processes by brush, charcoal, airbrush, finger-paint, etc." Id. Arguably, the ordinance does prohibit such processes, inasmuch as it "precludes any mechanical or duplicative process in whole or part," and an airbrush is clearly a mechanical tool. One could also argue that an artist who churns out repetitive, albeit handmade, paintings or drawings of the same familiar French Quarter scenes for sale to tourists uses "duplicative" processes. These ambiguities in the ordinance undermine the City's argument that it is narrowly tailored to its purpose.
An airbrush is "[a] compressed air tool that dispenses a fine mist of paint or ink; used in illustration and photo retouching."www.digitaldynamix.com/resources/glossary.html.
Courts have addressed similarly restrictive, content-neutral statutes as follows.
In Bery, the Second Circuit Court of Appeals invalidated the City of New York's licensing requirement for visual artists who wished to sell their works in public spaces. Despite the City's significant interest in keeping its public spaces safe and congestion-free, the court found that the law was not narrowly tailored because it effectively barred artists from selling their work on the streets. The City produced no evidence to justify such a sweeping bar on an entire category of expression. Bery, 97 F.3d at 697.
The ordinance limited the total number of licenses that would be granted but allowed existing licenses to be renewed automatically upon request. The City had a waiting list of between 500 and 5,000 applicants with a waiting time of three to five years to obtain a new license. Thus, the law effectively banned newcomers, including plaintiffs, from obtaining a license.
The Bery court also held that ample alternative avenues of communication were not available because
[d]isplaying art on the street . . . reaches people who might not choose to go into a gallery or museum or who might feel excluded or alienated from these forums. . . .
Furthermore, to tell appellants that they are free to sell their work in galleries is no remedy for them. They might not be at a point in their careers in which they are interested in reaching the public that attends exhibits at art galleries — if, indeed, they could get their works accepted for showing. . . . The sidewalks of the City must be available for appellants to reach their public audience.Id. at 698.
Similarly, in Weinberg, the Seventh Circuit struck down the City of Chicago's ban on selling merchandise on public property within 1,000 feet of the local hockey team's arena. Plaintiff had written and published a book critical of the team's owner and wanted to sell it to hockey game patrons outside the arena.Weinberg, 310 F.3d at 1033-34. The court acknowledged the City's interest in regulating to avoid congestion of its public streets and sidewalks,id. at 1038, but held that the City had failed to carry its burden to show that plaintiff's book sales restricted traffic flow. Id. at 1038-39.
Using a speech restrictive blanket with little or no factual justification flies in the face of preserving one of our most cherished rights. . . . [T]he only evidence the City offered was based on speculation as to what might happen if booksellers could sell their books and the cumulative effect this might have on pedestrian traffic. This is problematic; "[w]e have never accepted mere conjecture as adequate to carry a First Amendment burden."Id. at 1039 (quoting Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 392 (2000)). The Seventh Circuit found that the ordinance was not narrowly tailored because the City permitted other forms of public speech, such as handing out leaflets, street performances, newspaper sales and charitable solicitations, in the restricted area, which might cause as much sidewalk congestion as, or even more than, plaintiff's book sales. Id. at 1039-40.
The Seventh Circuit further held that Chicago failed to demonstrate that ample alternative channels were available to plaintiff. "Whether an alternative is ample should be considered from the speaker's point of view." Id. at 1041. Plaintiff's intended audience was the hockey team's fans, "a fundamentally different market than the market for bookstore readers or Internet users." Id. at 1042. "The most opportune time and place" to reach the intended audience was outside the arena before and after games, "a unique location for the sale of Weinberg's book." Id. "[A]n alternative is not ample if the speaker is not permitted to reach the intended audience." Id. (quotation omitted). The alternatives suggested by the City, such as distributing fliers to fans that would include locations for selling the book outside the 1,000 foot radius or selling the book in bookstores or via the Internet, "require Herculean efforts by Weinberg or his customers to complete the sale." Id.
In Wexler, 267 F. Supp. 2d at 567, Judge Duval of this court held that a City of New Orleans ordinance which banned book selling on public streets was not narrowly tailored when the City produced no evidence that selling books from a table on the street caused congestion or threatened the safety of pedestrians. Plaintiffs testified that they wanted to sell used books to local customers, not to tourists, on streets outside the French Quarter. Id. at 568. Judge Duval found that the alternative methods suggested by the City, such as selling books out of a bag or the back of a van, obtaining a permit to sell books in the French Quarter or selling out of a bookstore, were not adequate because they foreclosed plaintiffs' ability to reach their target audience. Id.
In contrast to these cases, the First Circuit upheld an ordinance that prohibited licensed commercial activity (including plaintiff's business of motion picture exhibition) between the hours of 1:00 a.m. and 6:00 a.m., based on the town's substantial interest in minimizing traffic, noise, litter and security problems in residential areas around the movie theater. National Amusements, Inc. v. Town of Dedham, 43 F.3d 731 (1st Cir. 1995). The court found that the town's avowed purposes were strongly supported by an evidentiary showing, including the records of numerous citizen complaints and the records of town meetings that led to passage of the ordinance.Id. at 741-42.
The First Circuit held that the ordinance was narrowly tailored because it promoted the substantial governmental interest in preserving peace and tranquility, which could not be achieved as effectively absent the regulation, id. at 744, and that plaintiff had ample alternative means of reaching its intended movie-going audience during the remaining 19 hours of the day. Id. at 745.
National Amusements, Inc. is distinguishable from Bery, Weinberg andWexler because the Town of Dedham in National Amusements, Inc. presented substantial, probative evidence that the ordinance was narrowly tailored to the Town's significant interests and that the movie exhibitor had ample alternative avenues to reach its intended audience at the same location during numerous other hours of the day. Like the City of New Orleans in the instant case, however, in Bery, Weinberg and Wexler, each defendant failed to present evidence that its sweeping restrictions on speech were narrowly tailored to its legitimate objectives.
The City of New Orleans indisputably has a significant interest in preserving the authenticity and charm of the French Quarter. In this case, the City bears the burden to establish that its ordinance is narrowly tailored to achieve its interest. However, as in Bery, Weinberg and Wexler, the City has produced no evidence to support its speculative assertion that any less burdensome alternative than the challenged ordinance would result in its interests being achieved less effectively. "We have never accepted mere conjecture as adequate to carry a First Amendment burden." Shrink Mo. Gov't PAC, 528 U.S. at 392; accord Weinberg, 310 F.3d at 1039; U.S. West, Inc. v. Federal Communications Comm'n, 182 F.3d 1224, 1238 (10th Cir. 1999). Display of plaintiff's works does not detract from the ambiance of the French Quarter any more than electric lights do.
In the absence of any evidence submitted by the City, this court cannot find that the ordinance is narrowly tailored to serve a significant government interest. Because the City has failed to carry its burden to show that the ordinance is narrowly tailored to achieve its interest, Trébert is entitled to partial summary judgment in his favor.
Because that ruling forecloses a finding of constitutionality, the court need not address whether the ordinance leaves open to Trébert ample alternative avenues of expression. Nonetheless, for purposes of any further review of this ruling, I will analyze that prong of the constitutional test as well.
E. The Ordinance Does Not Leave Open Ample Alternative Channels of Communication
It is well established that Trébert is "entitled to a public forum for [his] expressive activities." Bery, 97 F.3d at 698 (emphasis in original). The City argues that Trébert may sell his work from tables outside of events inside the City's Convention Center, inside the Superdome, inside arenas where concerts are held or at other events or festivals throughout the New Orleans area. Defendant contends that Trébert has failed to show that these alternative venues are inadequate. The City misconceives the evidentiary burden in this regard. It is not Trébert's burden to show that alternatives are inadequate; it is the City's burden to show that they are ample.
Trébert's permit, which cost him $25.25 in fees, gave him the right to exhibit his work on the Jackson Square fence until December 31, 2004. Plaintiff's Exh. 3, attached to his complaint. The permit is renewable in January of the following calendar year "and shall be obtained immediately upon the application being approved by the department of finance and the required permit fee being paid. . . . The director of finance shall grant the permit at his discretion." Municipal Code § 110-128(b).
None of the City's proposed alternative venues for Trébert's work is Jackson Square. The City has not demonstrated that events in the Convention Center, the Superdome, other arenas or festivals are as easily accessible to plaintiff and/or his intended audience as the fence area of Jackson Square, which is a unique venue for the display and sale of works like Trébert produces to passersby.
Sports events, conventions, concerts and festivals are episodic. Many sports events and concerts occur at night, as compared to plaintiff's daily, daytime access to Jackson Square. The City has not shown that Trébert could obtain access to the inside areas of the Convention Center, the Superdome, the New Orleans Arena or Kiefer UNO Lakefront Arena as simply and cheaply as he is able to obtain a one-year permit from the City for a nominal fee.
Nor has defendant shown that Trébert could have access to a booth at any festival. There is no evidence to establish whether entry to festivals is competitive and limited, or whether artists who qualify may have to pay significant fees for the right to set up a booth. The record is devoid of any evidence whether plaintiff is at a point in his career when his work would even qualify to be displayed in such venues. Bery, 97 F.3d at 698.
Furthermore, no evidence has been submitted as to whether festivals held outside the French Quarter may require patrons to travel by car or other long-distance transportation to reach them, compared to the easy public transportation and foot traffic access to Jackson Square, "the heart of [the] city's considerable tourist industry." Dukes, 427 U.S. at 299. As the Seventh Circuit held, alternatives that "require Herculean efforts by [plaintiff] or his customers to complete the sale" are neither ample nor adequate.Weinberg, 310 F.3d at 1042.
It is the City's burden to submit evidence in support of the ordinance. The City has made no showing that its proposed alternatives are as inexpensive to plaintiff, offer him the opportunity to display his works on a daily basis or are as easily accessible to his target audience as Jackson Square. Therefore, Trébert is entitled to summary judgment in his favor.
IV. Plaintiff Presents No Facial Challenge to the Ordinance
Trébert argues that the ordinance is unconstitutionally overbroad both on its face and as applied to him. In his motion for partial summary judgment, he asks that the court enjoin enforcement of the ordinance against him and any other person.
"[A] statute or ordinance may be considered invalid `on its face' — either because it is unconstitutional in every conceivable application, or because it seeks to prohibit such a broad range of protected conduct that it is unconstitutionally `overbroad.'" Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 797 (1984). However,
[c]ourts need not entertain an overbreadth challenge where the parties challenging the statute are those who desire to engage in protected speech that the overbroad statute purports to punish. . . . There is then no want of a proper party to challenge the statute, no concern that the attack on the statute will be unduly delayed or protected speech discouraged. The statute may forthwith be declared invalid to the extent that it reaches too far, but otherwise left intact.Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504 (1985) (internal quotation omitted) (emphasis added); accord United States v. Hicks, 980 F.2d 963, 969 (5th Cir. 1992).
In the instant case, Trébert has "failed to identify any significant difference between [his] claim that the ordinance is invalid on overbreadth grounds and [his] claim that it is unconstitutional when applied to [his photographically originated work]." Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 802 (1984). When, as in the instant case, "nothing in the record . . . indicate[s] that the ordinance will have any different impact on any third parties' interests in free speech than it has on [plaintiff]," plaintiff's facial challenge to the ordinance is unavailing. Id. at 801. However, enforcement of the law may be enjoined as applied to Trébert. Wexler, 267 F.Supp. 2d at 569.
I find that the ordinance is unconstitutional only as applied to Trébert and his activities at Jackson Square that are the subject of this lawsuit. There has been no showing that his pastel-colored, digitally initiated photographs, produced on Jackson Square, interfere with or detract from the "distinctive charm, character and tout ensemble of the [French] Quarter" or that a ban on the type of work he produces would advance protection of that interest.
This does not mean, however, that the City might not be able to show in a different case that a different type of operation than plaintiff's might be banned consistently with the First Amendment. For example, the feared prospect of a commercial photography business, featuring life-sized cardboard cutouts of presidents or other celebrities and faux backgrounds of French Quarter scenes (ironically set against the actual historic backdrop of Jackson Square) with which tourists might pose, or other similar ventures not in keeping with the unique character of Jackson Square, should they materialize, could very well be subject to prohibition under the ordinance without offending the First Amendment. In such a case, it is conceivable that the City and its lawyers might rouse themselves to develop and submit to the court evidence sufficient to bear the burden imposed by the law. In Trébert's particular case, however, they have not done so, and the ordinance unconstitutionally applies to him. Accordingly, appropriate declaratory and injunctive relief will be awarded, limited to Trébert's activities that are the subject of this lawsuit.
V. NOMINAL DAMAGES
In a case brought under 42 U.S.C. § 1983 seeking to vindicate the violation of constitutional rights, "substantial damages should be awarded only to compensate actual injury or, in the case of exemplary or punitive damages, to deter or punish malicious deprivations of rights."Carey v. Piphus, 435 U.S. 247, 266 (1978) (emphasis added). "[N]ominal damages . . . are the appropriate means of `vindicating' rights whose deprivation has not caused actual, provable injury." Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299, 308 n. 11 (1986) (citing Carey, 435 U.S. at 266).
In the instant case, plaintiff has established a violation of his constitutional rights but no actual, provable injury. Although he was cited for violating the ordinance and was temporarily enjoined from selling his digital photographs at Jackson Square, the City agreed not to enforce the ordinance against him pending resolution of the instant case. In addition, Trébert seeks only nominal damages in his complaint, Record Doc. No. 1, and his counsel conceded in the earlier conference with the court that no damages for actual injury have been incurred. Accordingly, he is awarded one dollar in nominal damages.
VI. ATTORNEY'S FEES AND COSTS
"In any action to enforce a provision of [ 42 U.S.C. §] 1983, . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988. "Under [the Supreme Court's] generous formulation of the term, plaintiffs may be considered `prevailing parties' for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Farrar v. Hobby, 506 U.S. 103, 109 (1992) (quotations omitted). The Supreme Court in Farrar squarely held that a plaintiff who receives a judgment vindicating his constitutional rights, thus obtaining at least some relief on the merits, is a prevailing party. Id. at 111.
Trébert is the prevailing party in this litigation. For the reasons set out above, a judgment in his favor will be entered on a federal claim brought under Section 1983, and Section 1988 must therefore be applied. Accordingly, IT IS ORDERED that, no later than February 18, 2005, plaintiff must file his motion to establish the amount of his award of attorney's fees in accordance with the provisions of Fed.R.Civ.P. 54(d)(2) and Local Rule 54.2. Defendant's opposition memorandum must be filed no later than February 28, 2005.
In addition, Trébert is entitled to recover his costs pursuant to Fed.R.Civ.P. 54(d)(1).
CONCLUSION
For the foregoing reasons, IT IS ORDERED that plaintiff's motion for partial summary judgment is GRANTED and that § 110-121 of the Municipal Code of the City of New Orleans is declared unconstitutional as applied only to Trébert and his activities at Jackson Square that are the subject of this lawsuit.
IT IS FURTHER ORDERED that the City of New Orleans is enjoined from enforcing § 110-121 of the Municipal Code of the City of New Orleans against Trébert as to his activities at Jackson Square that are the subject of this lawsuit.
IT IS FURTHER ORDERED that plaintiff is awarded nominal damages of one dollar.
During the status conference held in December 2004, counsel advised the court that resolution of plaintiff's motion for partial summary judgment would resolve the entire case, even though Trébert brought other claims in his complaint. Accordingly, IT IS FURTHER ORDERED that if plaintiff wishes to dismiss his other claims, he should file a motion to dismiss in compliance with Fed.R.Civ.P. 41(a). Following dismissal of plaintiff's remaining claims and determination of the amount of awardable attorney's fees, the court will enter final judgment.