Free Speech

New Orleans Mural Ordinance, Which Regulates "Works of Art," Is Unconstitutionally Vague

So a district court held today.

|The Volokh Conspiracy |

In today's Morris v. City of New Orleans (E.D. La.), U.S. District Judge Martin L.C. Feldman invalidated a New Orleans ordinance that regulated murals. The facts:

Neal Morris lives in Orleans Parish. He owns residential and commercial properties. He is perhaps not a fan of President Donald Trump. On November 4, 2017, Morris commissioned a local artist to paint a mural on a commercial property he owns at 3521 South Liberty Street. The mural quotes a controversial comment made by  President Trump that had been recorded in a 2005 "Access Hollywood" segment; the mural replaces with pictograms two vulgar words used by Trump.

Just a few days after the mural was painted, a local news outlet publicized a story about the mural and noted that murals "are typically regulated by the Historic District Landmarks Commission and the City Council." The same day the news story was published, on November 8, 2017, the City of New Orleans Department of Safety and Permits sent Morris a letter advising him that the mural violated a zoning ordinance. Jennifer Cecil, the purported director of the City's "One Stop for Permits and Licenses," wrote that an inspection of the property on November 8 revealed a violation of Section 12.2.4(8) of the Comprehensive Zoning Ordinance, which, according to her letter, concerns "Prohibited Signs—Historic District." …

Morris was instructed to remove the mural, and warned that his failure to do so by November 22, 2017 would cause the Department of Safety and Permits to initiate appropriate legal action to secure compliance. The penalty for failure to comply is a maximum fine or jail for each and every day the violation continues plus court cost as prescribed by law….

Morris uncovered several stark inaccuracies in the November 8 letter: Section 12.2.4(8) does not in fact exist; there is no section titled "Prohibited Signs—Historic District" in the CZO; nor does the CZO contain a blanket prohibition on murals in residentially zoned historic districts. On November 17, 2017, Morris politely wrote to the City requesting clarification in light of the inaccuracies in Ms. Cecil's letter. Impolitely, apparently the City did not respond.

Morris sued, and the city then replaced the ordinance, with one that imposes lighter regulations, but that still specially regulates any noncommercial "work of art painted or otherwise applied to or affixed to an exterior surface," but doesn't regulate other noncommercial signs. But the lawsuit continued, with Morris requesting an injunction blocking the new ordinance as well, and the court agreed, holding that the rule was unconstitutionally vague:

Jennifer Cecil, Director of the New Orleans One Stop for Permits and Licenses, … could not even define the term ["work of art"]:

A: . . . the presentation of a permit request for a mural is an assertion that this is a work of art . . . .

Q: So you are saying that the applicant, by the mere fact of asking for a mural permit, is presuming that the subject is a work of art?

A: That's my understanding of how it's approached, yes. . . .

Q: So that's what I am sort of getting at. I am trying to understand where the line is drawn.

A: If you tell me that it's not a work of art when you come in, that you are just painting solid—that you are painting a house, there will be no permit required if you are not in a historic district.

Q: So if I don't think it's a work of art, I don't need a permit?

A: If you don't think it is a work of art and you are describing solid color painting to us, we would not tell you that, no. If you begin describing figurative painting or painting of words, we would suggest that you have it reviewed and you present an example of what that would look like.

Tellingly, the City fails to respond to the plaintiff's arguments in this regard. In so doing, the City apparently concedes that the CZO's failure to define "work of art" renders the definition of "mural" impermissibly vague. {Of course, if the City were to attempt to define "work of art," this would unquestionably give rise to additional content-based distinctions. It appears the City has no choice but to step back and craft a broad, content neutral definition of sign that does not refer to "art," "commercial speech," or "non-commercial speech." And if the City wishes to treat murals differently than signs, it could perhaps create subcategories based on physical characteristics alone, such as "wall sign" or "painted wall sign." Compare Central Radio Co. Inc. v. City of Norfolk, Va., 811 F.3d 625, 628-29 (4th Cir. 2016) (holding that sign ordinance exempting from regulation "works of art which in no way identify or specifically relate to a product or service" was a "content-based regulation that d[id] not survive strict scrutiny") with Peterson v. Vill. of Downers Grove, 150 F. Supp. 3d 910, 919-23 (N.D. Ill. 2015) (holding that sign ordinance's ban on all painted wall signs was content neutral and "narrowly tailored to serve the Village's interest in aesthetics.").}

Because the CZO's use of the indistinct, shapeless, and obscure phrases "work of art" … fails to provide "sufficient guidance such that a [person] of ordinary intelligence would understand" when a mural permit is required, Morris is entitled to summary judgment that the definition of "mural" is unconstitutionally vague under the Due Process Clause of the Fourteenth Amendment.

The court also seemed to hold that any ordinance that requires prescreening of signs to determine whether they contain commercial advertising must pass strict scrutiny as a content-based restriction (even if it ultimately doesn't further distinguish within the category of speech that isn't commercial advertising), even though a restriction on commercial advertising doesn't need to pass strict scrutiny:

Because the City of necessity must determine whether a mural contains commercial speech, and, therefore, should be regulated as a sign, the ordinance is a prohibited free speech enemy and does not pass strict scrutiny, or even a more relaxed scrutiny test. The murals-permit scheme is unconstitutional insofar as it distinguishes between commercial and non-commercial artwork. Regulations of commercial speech (such as signs) are not subject to strict scrutiny. But the City has gone beyond signage regulation.

I'm not sure whether that's quite right, but I do think the holding that "work of art" is unconstitutionally vague is correct.

NEXT: @RealDonaldTrump and Twitter: Public Forums and Private Architecture

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  1. The Supreme Court sometimes makes vague definition and distinctinctions. It could be argued that its concept of commercial speech is vague and incapable of clear definition, just as it was argued that the Court’s definition of obscenity was unconstitutionally vague.

    But however much a lower court judge may disagree with the Supreme Court, lower courts are not free to say that speech categories created by the Supreme Court itself violate the constitution.

    Just as a lower court judge is not free to hold an obscenity law that track’s the Supreme zcourt’s definition of obscenity unconstitutionally vague, it is not free to hold a distinction between commercial and non-commercialspesch that tracks the Supreme Court’s own language in describing this distinction.

    Of course the Supreme Court is capable of being vague. But a lower court judge nonetheless isn’t free to claim a Suoreme Court decision violates the constitution on vagueness grounds, just as it isn’t free to rule a Supreme Court decision was wrong on other grounds.

  2. It could be argued that its concept of commercial speech is vague and incapable of clear definition,

    In the sense that anything “could be argued,” I suppose. But commercial speech is one of the most clearly defined terms.

    As to the rest, you have misread the opinion. It held that “work of art” was vague, not “commercial speech.”

  3. Interesting case, particularly as the Supreme Court has had no difficulty defining a “work of art” and distinguishing it from a mere “industrial design” in the copyright context. See, e.g., *Star Athletica v. Varsity Brands*, 580 US ___ (2017).

  4. “…the holding that “work of art” is unconstitutionally vague is correct.”

    Really? So is the Copyright Act unconstitutionally vague? It manages to define “work of visual art” and “pictorial, graphic, [etc.] work” in fairly vague terms using “art” and has managed to withstand attack. In fact, I suspect an attack based on vagueness wouldn’t survive the laugh test.

    In this case, chances are for copyright purposes the “mural” in question would be considered a literary work, since it’s pretty much all words. But even literary work is commonly understood to be art.

    And what’s with this “purported” director of the City’s “One Stop for Permits and Licenses” scarifying? Either she is or she isn’t, and later in the opinion the judge seemed content to accept her credentials.

    This whole case stinks. It’s a bit of judicial political theater or a disingenuous end-run around having to analyze the 1st Amendment issues.

    1. That’s because the copyright act doesn’t restrict any speech based on any of those factors.

      Anything that’s copyrighted has speech restrictions (other people can’t use it, with exceptions), but the restriction doesn’t depend in any way on whether it’s art or not, so a challenge for vagueness would have to assert that whether something was registered or not was a vague definition, and it’s not.

      This case instead restricts speech based on the content of the speech, not on whether there’s a copy of it in a registry, and the definitions the state provided are vague. If, on the other hand, the city had a law that said “no wall coverings of any kind except for those on this list” that wouldn’t be vague, and that’s how copyright restrictions work.

      Remember that copy right is asking the government to exclude others from use, not to allow you to use it yourself. In a world without copyright, anyone could use anything, so copyright adds a set of things that can be restricted notwithstanding the first amendments commandments.

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