The People, Respondent,v.Ray Lam, Appellant.

Brief

N.Y.April 24, 2013

To be argued by MARTIN M. LUCENTE (15 minutes requested) COURT OF APPEALS STATE OF NEW YORK ____________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- RAY LAM, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT STEVEN BANKS MARTIN M. LUCENTE Attorneys for Defendant- Appellant THE LEGAL AID SOCIETY Criminal Appeals Bureau 199 Water Street, 5th Floor New York, New York 10038 (212) 577-3586 September, 2012 i TABLE OF CONTENTS TABLE OF AUTHORITIES.....................................iii PRELIMINARY STATEMENT......................................1 QUESTION PRESENTED.........................................2 STATEMENT OF FACTS.........................................2 The New York City General Vending Regulatory Scheme...2 Criminal Court Proceedings............................4 The Trial.............................................7 The People’s Case................................7 The Defense Case.................................8 Summations.......................................9 Verdict.........................................10 Sentencing...........................................10 Appellate Proceedings................................10 ARGUMENT POINT APPELLANT’S VENDING OF ARTISTIC TEE- SHIRTS WAS CONSTITUTIONALLY PROTECTED SPEECH, IMMUNE FROM PROSECUTION UNDER THE NEW YORK CITY GENERAL VENDING ORDINANCE, AND HIS CONVICTION FOR VIOLATING THAT ORDINANCE SHOULD BE VACATED, AND THE CHARGE DISMISSED. U.S. CONST., AMENDS. I AND XIV; N.Y. CONST., ART. I, §8..................................... 12 Applicable Rules of Constitutional Law..........12 The Second Circuit Decisions in Bery and Mastrovincenzo..................................18 The Application of Free Speech Analysis to the Case at Bar.....................................20 The Courts Below Misapplied Mastrovincenzo ...20 ii The Mastrovincenzo Balancing Test Is Patently Deficient and Should Not Be Followed By the New York Courts ..............................22 CONCLUSION................................................32 iii TABLE OF AUTHORITIES FEDERAL CASES Ayres v. City of Chicago, 125 F.3d 1010 (7 th Cir. 1997) .......................13, 28 Bery v. City of New York, 97 F.3d 689.................Passim Cohen v. California, 403 U.S. 15 (1971)...................13 Gaudiya Vaishnava Society v. City and County of San Francisco, 952 F.2d 1059 (9 th Cir. 1991) .............13-14 Hague v. CIO, 307 U.S. 496 (1939).........................14 Hoepker v. Kruger, 200 F.Supp.2d 340 (S.D.N.Y. 2002)......13 Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750 (1988)....29 Marcavage v. City of New York, __ F.Supp2d __, 2010 WL 3910355 (S.D.N.Y.) .....................................14 Mastrovincenzo v. City of New York, 435 F.3d 78 (2006) .................................Passim McEntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) ....................................15 Metropolitan Council v. Safir, 99 F.Supp.2d 438 (S.D.N.Y. 2000) .......................28 One World One Family Now v. City & County of Honolulu,76 F.3d 1009 (9 th Cir. 1996) ...............13, 28 Perry Educ. Ass’n v. Perry Local Educators Ass’n, 460 U.S. 37 (1983) .....................................15 United States v. Grace, 461 U.S. 171 (1983)...............15 STATE CASES Comedy III Prods., Inc. v. Gary Saderup, Inc., 21 P.3d 797 (Cal 2001) .................................13 iv Immuno AG v. J. Moor-Jankowski, 77 N.Y.2d 235 (1991) ...............................16, 24 Matter of Patchogue-Medford Congress of Teachers v. Board of Educ. Of Patchogue-Medford Union Free School Dist., 70 N.Y.2d 57 (1987) ......................32 Matter of Rogers v. New York City Tr. Auth., 89 N.Y.2d 692 ..........................................17 O’Neill v. Oakgrove Constr., 71 N.Y.2d 521 (1988).........16 People Ex Rel. Arcara v. Cloud Books, 68 N.Y.2d 553 (1986) ...............................17, 29 People v. Barton, 8 N.Y.3d 70 (2006)......................16 People v. Larsen, 29 Misc. 3d 423.....................13, 21 Time Sq. Books v. City of Rochester, 223 A.D.2d 270 (4 th Dept. 1996) .........................16 CONSTITUTIONAL PROVISIONS N.Y. Const., Art. I, §8............................2, 12, 16 U.S. Const., Amend. I..............................2, 12, 16 U.S. Const., Amend. XIV............................2, 12, 16 STATUTES Administrative Code § 20-453..........................Passim MISCELLANEOUS Genevieve Blake, Expressive Merchandise and the First Amendment in Public Fora, Comment, 34 Fordham Urb. L.J. 1049, 1056 (April 2007) ............................3 Comment, 34 Fordham Urb. L.J. 1049, 1054-1055 (April 2007) ..................................................23 Comment, 34 Fordham Urb. L.J. 1049, 1056 (April 2007)......3 v New York Times articles....................................4 Randall J. Cude, Note, Beauty and the Well-Drawn Ordinance: Avoiding Vagueness and Overbreadth Challenges to Municipal Aesthetic Regulations, 6 J.L. & Pol’y (1998) ....................................23 1 COURT OF APPEALS STATE OF NEW YORK ----------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : RAY LAM, : Defendant-Appellant.: ----------------------------------------X PRELIMINARY STATEMENT By permission of the Honorable Theodore T. Jones, granted on June 21, 2012 (A1), 1 appellant appeals from an order of the Appellate Term, First Department, entered December 23, 2011, which affirmed a judgment of the Criminal Court, New York County, rendered September 16, 2010, convicting appellant, after a bench trial, of unlicensed general vending (A.C. §20.453) and sentencing him to a $250 fine. People v. Lam, 34 Misc. 3d 130(A), 946 N.Y.S.2d 68(App. Term, 2011)(see A2-A4). On June 21, 2012, this Court granted leave to appeal as a poor person and subsequently assigned Steven Banks of The Legal Aid Society as counsel on appeal. Appellant has completed his sentence. QUESTION PRESENTED Whether appellant’s vending of artistic tee-shirts was constitutionally protected speech, immune from 1 Numbers in parentheses preceded by “A” refer to pages of the defendant-appellant’s appendix. 2 prosecution under the New York City general vending ordinance, and his conviction for violating that ordinance should be vacated, and the charge dismissed. U.S. Const., Amends. I and XIV; N.Y. Const., Art. I, §8. * * * This Court has jurisdiction of this appeal pursuant to the June 21, 2012, leave grant (A ) and because the issue as to the constitutional impediment to prosecuting appellant for selling expressive tee-shirts as a violation of his free speech rights was fully presented and argued in the courts below. STATEMENT OF FACTS The New York City General Vending Regulatory Scheme General Vending Law (“GVL”) of the New York City Administrative Code specifies who can sell what, under what circumstances, in public areas of the city. §20-452(b) defines a general vendor as one who “hawks, peddles, sells, leases or offers to sell or lease, at retail, goods or services . . . in a public space.” §20-453 requires any vendor of non-food goods and services to obtain a license, subjecting anyone who violates this provision to conviction of a misdemeanor punishable by fine, incarceration and such civil penalties as forfeiture of the goods being sold. §§20- 468 and 20-472(a) and (c)(1). Valid for a year, but renewable indefinitely, vending licenses cost $200. §20-454. The number of licenses available was effectively capped at 853, with the exception 3 that any United States war veteran is entitled to a license. §20-459(a); Bery, at 692, raising the number of vendors to 1,193 as of 1996, Mastrovincenzo, at 83; Genevieve Blake, Expressive Merchandise and the First Amendment in Public Fora, Comment, 34 Fordham Urb. L.J. 1049, 1056 (April 2007). In addition, in 1982, the City exempted vendors of newspapers, books, and other written materials from the licensing requirement. §20-453. Significantly, according to an article in the 2007 Fordham Urban Law Journal, at that time, the waiting list for licenses was “effectively closed”. Blake, supra, at 1056. 2 GVL §20-465 also places myriad time, place, and manner restrictions on vendors, such as the amount of space that may be occupied, setting a minimum width of sidewalks open to vending and the minimum distance between a vendor and a bus shelter or subway entrance, barring general vendors from Ground Zero and parts of Midtown, and barring vending from blankets, boxes, or the tops of steam grates. §20-465. Significantly, it expressly allows the police and city authorities, in “exigent circumstances,” to notify a vendor that he must temporarily move from a particular location and defines such circumstances to include, inter alia, “unusually heavy pedestrian or vehicular traffic” (§20- 465[k]). Criminal Court Proceedings 2 The author cited two New York Times articles in reaching this conclusion. Id., n 49. 4 Counsel moved to dismiss the information for facial insufficiency, arguing, inter alia, that, as applied to him, the unlicensed general vending prohibition violated his right to free expression guaranteed by the First Amendment of the federal constitution (A10-20). Citing applicable case law, appellant argued that the items for which he was charged with illegal vending were protected, expressive visual art, and that the mere fact that they were being sold or may also have had a non-expressive, “utilitarian purpose” did not remove their protection under the First Amendment (A12-16). Specifically, the defense stated, these tee-shirts were created by appellant’s own prints and printmaking techniques. “While . . . [appellant] uses a variety of techniques, the majority of the items were made by a similar method” (A15). Appellant’s “work is more than mere craft, and the unique characteristics of each piece are designed to allow the wearer to convey an individual and distinctive message” (A15). Appellant makes “his artwork according to thematic expression and imagination, distinct to the specific themes conveyed in his prints” (A15). Appellant’s choice of location to display his work - - Union Square - - was “also important to the communicative value of his work,” and the “fact that Mr. Lam chooses to work in a medium such as ‘painting’ and printmaking does not mean that these works are not expressive visual art (A15- 16). 5 The People responded that the tee-shirts were not artwork and lacked “any significant expressive elements” (A18-20). Rather, they were “essentially items of clothing to be worn” (A20). In the alternative, the People argued, even if the tee-shirts “contain expressive elements,” New York City was not prohibited by the First Amendment from enacting content-neutral regulations regarding publicly sold goods (A20-23). In oral argument on this motion, counsel noted that “[p]art of [appellant’s] artwork is political messages ... and some intermixed with religious iconography” (A26-27). Focusing on the pertinent tee-shirts themselves, the court (Marc Whiten, J.) responded that “the issue comes down to the weighing of the use of the item as art as opposed to some sort of use, in this case, the ability to wear the T- shirt” (A27). It found that the tee-shirts “have an artistic value to them” (A28). Stating that it was applying the test set forth in Mastrovincenzo v. City of New York, 435 F.3d 78 (2006), the court compared tee-shirts to jewelry, stating, “if it is clothing, then the balancing test doesn’t work” and that, had the appellant sold his art “as framed tee- shirts, that will be a horse with a different color” (A28- 29). With regard to the Mastrovincenzo balancing test, it elaborated, “[i]t’s a balancing test which the federal case illustrates doesn’t work in that case. It can’t be a 50/50 6 proposition. It has to be clear that it has so little use of equality [sic] 3 (A27-A28). The Trial The People’s Case On the afternoon of June 6, 2010, Officer Anthony Faranda was working in plainclothes at Union Square when he observed appellant at a table offering tee-shirts for sale (A35-A39, A43-A46). Faranda asked the price of the tee- shirts, and appellant said $20 (A38, A40). When appellant was asked whether he had a license and said no, he was arrested (A38, A40). He explained at trial that he had thought his tee-shirts were art protected by the First Amendment (A60). Faranda took six tee-shirts from the table and vouchered them (A40-41). The tee-shirts were admitted in evidence without objection as People’s exhibit one (A40- 42). 4 The Defense Case Appellant, Ray Lam, was fifty-two years old at the time of trial and had studied at Pratt (Institute) in 3 One could reasonably surmise that the court actually said “or utility,” rather than “of equality” and that the court reporter simply got this wrong. 4 In response to his request for these exhibits, appellate counsel was informed by the exhibits paralegal for the New York County District Attorney that these tee-shirts had been destroyed. 7 architecture and at Bronx Community College in electrical engineering, although he had not graduated from either institution (A52-A53). He had been creating artwork for five years (A53). The subject matter of this work was “social, political, and religious in nature, and current events . . .,” a “blend” of appellant’s reading and studies (AA53-A55). Four pictures of drawings by appellant were admitted in evidence, over objection, as defendant’s exhibit A (A53- A55). These drawings portrayed what appellant was selling at the time of his arrest in this case (A54-A55). The drawings contained appellant’s scientific “counter to religion,” as well as “a statement on the state of surveillance,” a “tribute to all 1984, since this was a lot of like breakdown of civil rights and people being watched,” and one was “about the Iraq War” (A55). Appellant generated his artwork through technical drawings and drawing on the computer (A55). He does “a lot” of his work on computer and then prints it out, “on either canvas which I sell, or print which I sell, of T-shirts which I sell” (A55). He specifically described these media as “[c]anvasses, paper prints, also T-shirts, which people also have actually asked me to sign and frame them because they like the work enough that they frame them” (A56). He has had gallery showings in Hong Kong and has had “offers” in Boston and California as well (A56). Appellant was not engaged in a sale at the time the police approached him and 8 did not sell anything that day, although he had been trying to sell his tee-shirts (A58-A59). Summations Counsel repeated his prior arguments that appellant’s tee-shirts were artwork protected by the First Amendment (A62-A64). The prosecutor responded that they were not and that the issue had already been decided when appellant’s motion to dismiss was denied by another judge (A66-A67). The court (Matthew A. Sciarrino, J.) disagreed with the latter contention (A67). It further opined: In order to determine whether a sale of goods is entitled to First Amendment protection, this Court considered whether the items would . . . have a common non-expressive purpose or utility, and whether this non-expressive purpose is dominant or not . . . [citations omitted]. The transferring of an artistic image to the T-shirt changed the art, the non-expressive purpose became dominant clothing (A67). Verdict Accordingly, the court found appellant guilty of vending without a license (A67-A68). Sentencing Appellant was ordered to pay a $250 fine (A68). Appellate Proceedings On appeal, we argued, inter alia, that appellant’s vending of artistic tee-shirts was constitutionally protected speechand that the unlicensed vending charge 9 against him should be dismissed. (Appellant’s Appellate Division Brief, at pp. 9-14). The prosecution contended that the evidence was sufficient, that it had proved its case, and that appellant’s sale of tee-shirts was not constitutionally protected (Respondent’s Appellate Division Brief, at pp. 8- 24). Finding the evidence sufficient and the verdict not against the weight of the evidence, the Appellate Term affirmed as follows: We find unavailing defendant’s contention that the expressive messages conveyed by the artistically decorated tee shirts constituted constitutionally protected speech and, so the argument goes, exempted him from the licensure requirements of the general vending ordinance. On this record and considering, among other factors, the manner in which defendant displayed the tee shirts – folded and in piles – and the uniform, modest selling price ($20 each) quoted by defendant to the undercover police officer, Criminal Court was warranted in concluding that defendant’s wares were mere commercial goods whose dominant purpose was utilitarian, and not expressive (see and compare Mastrovincenzo v City of New York, 435 F3d 78, [2d Cir 2006]). Moreover, since Administrative Code § 20-453 leaves open to plaintiff “ample alternative channels” of communication, its enforcement here does not violate his First Amendment rights (Mastrovincenzo, at 100-102)(A2-A3). Judge Theodore T. Jones granted leave to appeal to this Court on June 21, 2012 (A1). 10 ARGUMENT POINT APPELLANT’S VENDING OF ARTISTIC TEE- SHIRTS WAS CONSTITUTIONALLY PROTECTED SPEECH, IMMUNE FROM PROSECUTION UNDER THE NEW YORK CITY GENERAL VENDING ORDINANCE, AND HIS CONVICTION FOR VIOLATING THAT ORDINANCE SHOULD BE VACATED, AND THE CHARGE DISMISSED. U.S. CONST., AMENDS. I AND XIV; N.Y. CONST., ART. I, §8. Appellant was charged with violating the New York City general vending ordinance for selling tee-shirts with artistic images in a New York park without a license to do so. He was convicted and fined after the denial of his motion to dismiss on the ground that his prosecution violated his constitutional rights of free expression and a bench trial at which he testified in detail as to the artistic, political, and religious content of his work. For the reasons stated below, his prosecution and ultimate conviction violated his rights of free expression, his conviction should be vacated, and his fine remitted. Applicable Rules of Constitutional Law The First Amendment to the federal constitution provides that “Congress shall make no law . . . abridging 11 the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Const., Amend. I. It has “been valued as essential to the preservation of a political democracy in this country,” shielding more than political speech and verbal expression. Bery v. City of New York, 97 F.3d 689, 694. Its protection has been extended to such areas of expression as film, theater, music, marches, and demonstrations. Id. It is, in addition, well-established that tee-shirts and other apparel containing expressive images or messages, as well as the sale thereof, warrant First Amendment protection. See, e.g., Cohen v. California, 403 U.S. 15 (1971); Bery v. City of New York, 97 F.3d 689, 694 (2 nd Cir. 1996)(listing cases); Ayres v. City of Chicago, 125 F.3d 1010 (7 th Cir. 1997); One World One Family Now v. City & County of Honolulu,76 F.3d 1009 (9 th Cir. 1996); Gaudiya Vaishnava Society v. City and County of San Francisco, 952 F.2d 1059 (9 th Cir. 1991); Hoepker v. Kruger, 200 F.Supp.2d 340 (S.D.N.Y. 2002); Comedy III Prods., Inc. v. Gary Saderup, Inc., 21 P.3d 797 (Cal 2001); see also People v. Larsen, 29 Misc. 3d 423, 434(Crim. Ct. N.Y. Cty. 2010 (“a T-shirt serves as a blank canvas on which to affix a political message, with the ultimate purpose being just as much to convey that message to others as to clothe the wearer.”). With respect to the use of public fora to express oneself, a concurring opinion in Hague v. CIO, 307 U.S. 496, 12 515 (1939), stated, “[w]herever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Moreover, “the Supreme Court has repeatedly recognized public streets “as the archetype of a traditional public forum . . . where the government’s authority to restrict speech is at its minimum.” Gaudiya Vaishnava Society, supra, at 1065; accord Marcavage v. City of New York, __ F.Supp2d __, 2010 WL 3910355 at 4 (S.D.N.Y.). Also well-recognized is the right of city governments to regulate the use of their public areas, such as streets, sidewalks, and parks. See, e.g., Mastrovincenzo v. City of New York, 435 F.3d 78 (2 nd Cir. 2006) (hereafter, “Mastrovicenzo”); Bery v. City of New York 97 F.3d 689. 694 (2 nd Cir. 1996)(hereafter, “Bery”). Any regulation of expression based directly on content is subject to strict scrutiny, requiring, for validation, a compelling state interest and regulation narrowly tailored to serve that interest. McEntyre v. Ohio Elections Comm’n, 514 U.S. 334, 380 (1995). Time, place, and manner restrictions on speech in public fora that are not content-related are subject to intermediate scrutiny, requiring a determination of whether the regulation is narrowly tailored to promote a city’s significant interests and whether there are adequate alternatives for persons affected by the regulation to 13 conduct their expressive activity. United States v. Grace, 461 U.S. 171,, 177 (1983); Perry Educ. Ass’n v. Perry Local Educators Ass’n, 460 U.S. 37, 45 (1983). 5 The New York courts have taken an approach to free speech issues more protective than the federal constitution. The New York State Constitution provides, in what has been termed “expansive language,” that “[e]very citizen may freely speak, write and publish his sentiments on all subjects . . . and no law shall be passed to restrain or abridge the liberty of speech or of the press.” N.Y. Const., Art. I, §8; Immuno AG v. J. Moor-Jankowski, 77 N.Y.2d 235, 249 (1991); O’Neill v. Oakgrove Constr., 71 N.Y.2d 521, 528- 529 (1988); Time Sq. Books v. City of Rochester, 223 A.D.2d 270, 274 (4 th Dept. 1996). With respect to questions as to the effect of governmental regulation on the right to free speech, the New York courts broadly apply the federal constitutional standards set forth above, i.e., employing time, place, manner analysis to regulation that is not 5 The Second Circuit and the courts in the case at bar have analyzed the general vending ordinance as a content neutral, time, place, manner regulation, subject to an intermediate standard of review. Compare Bery, supra, at 696-697 (expressing doubts as to whether the general vending regulation was content- neutral because it effectively favored certain categories of vendors over others, but avoiding deciding the issue due to the failure of the City to meet the intermediate standard through appropriate time/place/manner regulation) with Mastrovincenzo, supra, at 99-100 (finding the general vending regulation to be content-neutral). While appellant will address the intermediate standard in the following discussion, it should nonetheless be noted that, if the medium (or even the forum) is the message, then §20-453 may not in fact be wholly content neutral, even in spite of the fact that it is not on its face directed to particular, specific messages. 14 content-related. See, e.g., People v. Barton, 8 N.Y.3d 70, 76 (2006) (involving regulation of panhandling). Far, however, from simply parroting federal constitutional law on free speech issues, the courts of New York have not hesitated in engaging in the conscientious scrutiny of such issues: as this Court noted in Immuno AG, supra, at 248, “[i]t has long been recognized that matters of free expression in books, movies and the arts generally are particularly suited to resolution as a matter of State common law and State constitutional law, the Supreme Court under the Federal Constitution fixing only the minimum standard applicable throughout the Nation, and the State courts supplementing those standards to meet local needs and expectations . . . [citation omitted].” In this vein, “[t]his State, a cultural center for the Nation, has long provided a hospitable climate for the free exchange of ideas.” Id., [citation omitted]. In People Ex Rel. Arcara v. Cloud Books, 68 N.Y.2d 553, 557-558 (1986) this Court ultimately blocked the State from applying an anti-nuisance ordinance to close down an adult book store for a year because the State could not prove that this application of the ordinance was no broader than needed to achieve its purpose. In so doing, on remand from the United States Supreme Court, which had ruled in favor of the State, this Court ruled that, while it was bound by Supreme Court decisions as to federal constitutional rules, it was also “bound to exercise its independent judgment” as to the 15 “scope and effect of the guarantees of fundamental rights of the individual” in the New York Constitution. Cf. Matter of Rogers v. New York City Tr. Auth., 89 N.Y.2d 692, 698-702) (noting that governmental regulation of speech is subject to “the sharpest scrutiny” under the ‘public forum doctrine’, but declining to reject that doctrine on state constitutional law grounds). The Second Circuit Decisions in Bery and Mastrovincenzo The conflict between the rights of prospective vendors and the City’s function of regulating conduct in public places was addressed in two Second Circuit cases, Bery and Mastrovincenzo. Led by Robert Bery, who had sought to sell “forest series” paintings in New York public spaces, a group of unlicensed painters, photographers, sculptors, and an artists’ advocacy organization sued the City to enjoin it from enforcing the general vending ordinance against them. The Second Circuit ended up reversing a district court ruling for the City. It noted that “[v]isual art is as wide ranging in its depiction of ideas, concepts and emotions as any book, treatise, pamphlet or other writing . . .” Bery, supra, at 695). It further found that, since the artists’ street sales of their art allowed the public to consume their work, the street sales were part of the artists’ expressive purpose Bery, supra, at 696. The Second Circuit ruled that the ban on the artists’ unlicensed sale of their work in public places was not a 16 valid time, place, manner regulation. In particular, it noted the time, place, manner regulations already available under the Administrative Code allowing the City to deal with problems of traffic congestion, crowd management, and clear passage through city streets. Bery, supra, at 698. It further considered the exceptions made for veterans and vendors of written materials. Bery, supra, at 698. Significantly, the court rejected the City’s argument that there were other alternative channels for the vendors to sell their work, opining, “displaying art on the street has a different expressive purpose than gallery or museum shows; it reaches people . . . who might feel excluded or alienated from these forums.” Bery, supra, at 698. This litigation concluded with the City’s consent to a permanent injunction of the enforcement of §20-453 against vendors in public of paintings, photographs, prints and/or sculpture. Mastrovincenzo, supra, at 93. The Second Circuit took up the issue again with its 2006 decision in Mastrovincenzo. The artists in that case sought to sell without a license articles of custom-painted clothing, with images of public figures, text, and logos. The district court found these items sufficiently expressive to merit First Amendment protection, but the Second Circuit vacated the grant of a preliminary injunction. It laid down a mode of analysis requiring an initial inquiry as to whether a work contains any expressive elements. Mastrovincenzo, supra, at 94-95. If it so finds, then it 17 must consider whether it also has utility, and, if it does, whether the expressive elements predominate over its utility. The Mastrovincenzo court found that the works’ expressive qualities outweighed their utility and that they were therefore worthy of First Amendment protection; it ruled nonetheless that the City’s regulation of these vendors was permissible under time, place, manner analysis because there were sufficient alternative channels of communication and because the City Counsel had determined that the GVL’s licensing requirement alleviated congestion on City sidewalks. The Application of Free Speech Analysis to the Case at Bar The Courts Below Misapplied Mastrovincenzo In the case at bar, the courts below erred in failing to find that appellant’s sales of the tee-shirts were constitutionally protected. As appellant himself testified, without contradiction, his work was “social, political, and religious in nature,” centered on current events (22, 24). He produced his artwork, moreover, through technical drawings and drawing on the computer. These materials were clearly expressive art work, and, as with the graffiti clothing involved in Mastrovincenzo, designed to make a point and predominantly expressive rather than utilitarian. As appellant testified, “people have also asked me to sign and frame them because they like the work enough that they 18 frame them” (25). As the court observed in People v. Larsen, 29 Misc. 3d 423, 434 (Crim. Ct. N.Y. Cty. 2010), “a T-shirt serves as a blank canvas on which to affix a political message, with the ultimate purpose being just as much to convey that message to others as to clothe the wearer.” And, notably, the court that denied appellant’s motion to dismiss found the tee-shirts to “have an artistic value to them,” the trial court referred to the “artistic image[s]” of the shirts, and the Appellate Term described the “expressive message conveyed by the artistically decorated tee shirts” (emphasis added) (D4; 36; December 23, 2011, Decision and Order). Nonetheless, the hearing court and the trial court both applied what appears to be a per se rule that the mere fact that the image ends up on a piece of clothing removes it from constitutional protection, thus actually failing properly to apply the Mastrovincenzo balancing test. The Appellate Term correctly stated that test, but reached the wrong result. In short, even without examining the constitutional propriety of the Mastrovincenzo balancing test, it is clear that appellant should have prevailed below due to the courts’ flagrant misapplication of that test to appellant’s tee-shirts containing patently expressive, political, religious, and artistic content. The Mastrovincenzo Balancing Test Is Patently Deficient and Should Not Be Followed By the New York Courts 19 Aside from the fact that the courts below clearly misapplied Mastrovincenzo to the severe detriment of appellant’s free speech rights, that court’s approach is itself a misapplication of free speech principles. Significantly, in Mastrovincenzo, the Second Circuit found that the expressive elements of the artistic clothing outweighed their utility, as opposed to this case in which the state courts found otherwise - - without, however, offering any significant analysis of the question. Aside from the fact that appellants’ tee-shirts - - with their expression of political, religious, and artistic viewpoints - - were obviously worthy candidates for exemption from the general vending licensing requirements, close scrutiny of the Mastrovincenzo test for exemption, in the context of this case, shows why it is deficient and an inadequate tool for balancing the weighty public interests involved in cases such as this, even when it is correctly applied. To begin with, public vending of expressive clothing and similar items serves numerous individual and social interests. It gives a forum for both expression and commercial activity to persons who might well not be able to communicate in other fora - - appellant could attempt to create a market for his goods and ideas in the parks of New York, but may not have been able to convince the Metropolitan Museum of Art to sell his tee-shirts in its shops. See generally, Genevieve Blake, Expressive Merchandise and the First Amendment in Public Fora, Comment, 20 34 Fordham Urb. L.J. 1049, 1054-1055 (April 2007)(describing the reasons why people engage in “street vending”). After all, “parks streets and sidewalks often provide the economically disadvantaged with their only access to communicative expression.” Randall J. Cude, Note, Beauty and the Well-Drawn Ordinance: Avoiding Vagueness and Overbreadth Challenges to Municipal Aesthetic Regulations, 6 J.L. & Pol’y (1998), N 13, at 874. The New York general vending law, creating a situation in which only a select and severely limited group of people can engage in public vending, strikes directly at the heart of this important and fundamental right. It violates the rights of the prospective vendors and directly affects society at large, which loses the opportunity to receive the messages they would like to convey. It affects persons such as appellant by denying them critical and legitimate means of spreading their expressive messages and diminishes what this Court has lauded as New York City’s role as the cultural center of the nation. See Immuno AG, supra, at 248. It is particularly troubling that the Appellate Term in this case, in addition to its cursory and unexplained finding as to expressivity/utility, based it decision as well on its own conclusion as to how the goods were sold - - stacked in piles, at $20 a tee-shirt. In its brief opinion, the court never explained why these facts tend toward utility rather than expressivity. Is what it deemed the “modest price” of $20 a high or low price for a tee-shirt? 21 Does a low price suggest that its artistic value is low, or simply that the artist is attempting to create a market by generating sales, or possibly just confirm the widely-known reality that struggling artists, starting out, may not right away command high prices for art that has not yet been publicly credited. Notably, the People did not introduce evidence in the hearing or trial court to support the Appellate Term’s dubious conclusions on this factual issue. It should be quite clear that these few facts - - as to price and display - - latched onto by the Appellate Term do not actually support any particular argument as to the expressivity/utility test. Just as clear is the fact that, while the Mastrovincenzo court was understandably hesitant to have courts make artistic/aesthetic judgments, Mastrovincenzo, supra, at 93-95, it not only kept a judgment as to expressivity as part of its test but added another difficult judgment – utility – to the mix. One might ask why the courts should be attempting to engage in marketing analysis as part of the constitutional test; in any event, this case shows how easily such an approach leads to arbitrary and irrational analysis and results. The Mastrovincenzo court ended up with an ill-advised answer to the question posed by the City’s regulation of expression through artistic media in public fora by beginning with the wrong question: “to resolve whether the First Amendment protects the sale of graffiti clothing, we must ultimately determine whether the disseminators of that 22 clothing are genuinely and primarily engaged in artistic self-expression or whether the sale of goods is instead a chiefly commercial exercise.” Mastrovincenzo, supra,at 91. 6 To put it bluntly, as suggested above, such an inquiry is essentially a fool’s errand, especially in a world where commercial activity is indissolubly and inextricably linked with artistic and other modes of expression. Was Andy Warhol an artist or an entrepreneur? If both, merchant and artist, which predominated? Not only, therefore, is such analysis demonstrably futile, it simply should not further complicate - - nor provide a convenient means of avoiding - - the correct question that Bery in fact dealt with: is the unlicensed sale in public places of certain “artistic” items sufficiently expressive to merit constitutional protection, and has the City shown a sufficient interest in regulating them and a method comporting with constitutional standards? 6 Oscar Wilde’s comment on this general subject in his 1882 book, Art and the Handicraftsman is instructive: “People often talk as if there was an opposition between what is beautiful and what is useful. There is no opposition to beauty except ugliness.” One could well ask how articles such as rugs should be treated. Would expressive and/or artistic rugs be viewed as works of art or would their utility effectively exempt them from free speech protection? Would it depend on whether they are hung or put on the floor? Notably, at the time of sale, both possibilities would exist. With this in mind, the fact that appellant stated that his tee-shirts might be framed as works of art would seem to suggest that they might not necessarily be purchased for their utility at all. While the hearing court suggested that they might be constitutionally protected if they were framed, why should the question of whether a frameable work can be legally vended depend on whether the frame is put on before or after the sale? 23 It should not be answered by finding out how much the works are selling for or how they are displayed. Furthermore, even understanding that the free speech rights at stake in this case, while fundamental and important, are not absolute, it is difficult to see the application of the Mastrovincenzo test in this case as anything but a misapplication of time/place/manner analysis. Appellant was not selling his tee-shirts in the streets or even on the sidewalk, as opposed to the vendors in Mastrovincenzo, who were “sidewalk purveyors’ of painted clothing. Mastrovincenzo, supra, at 82. He was selling them in a park large enough to accommodate significant activity and traffic. This fact alone distinguishes this case from sales on streets or sidewalks and removes it from the category of concern addressed in the City Council pronouncement expressing an interest in preventing street congestion on which Mastrovincenzo partially based its decision. In any event, had he interfered with traffic or caused congestion, the authorities had the regulatory tools to get him to stop selling or move elsewhere nearby, or somewhere else altogether, so as not to impede traffic; see, e.g., GVL §20-465 (setting forth the scheme for regulating licensed general vendors). Indeed, they presumably employ just such tools to regulate the public vending of the persons exempted from licensing under the Bery consent decree and to the veterans, and unlimited numbers of book, magazine, and 24 newspaper vendors exempted by §20-453 itself. See Bery, at 698 (noting the availability of these time, place, manner regulatory tools). Prosecuting appellant instead for failing to obtain an essentially unattainable license was plainly not the least restrictive effective means of meeting the City’s legitimate regulatory ends. See Ayres v. City of Chicago, 125 F.3d 1010, 1016 (7 th Cir. 1997)(pointing out that, while city regulators may not be required to employ the least restrictive alternative under time, place, manner analysis, they act at their peril when they ignore a number of available alternatives to accommodate the public forum sale of tee-shirts) (7 th Cir. 1997); One World One Family Now v. City & County of Honolulu,76 F.3d 1009 (9 th Cir. 1996), dissent (same); Metropolitan Council v. Safir, 99 F.Supp.2d 438, 445 (S.D.N.Y. 2000) (even though City not required to use least restrictive alternative in regulating expressive conduct of sleeping involving public sleeping on streets or sidewalks, its total ban of such activity was not sufficiently narrow to satisfy time, place, manner standards); People Ex Rel. Arcara v. Cloud Books, 68 N.Y.2d 553, 557-558 (1986). Nor did the prosecution in this case establish that appellant had significant alternative means for communicating his ideas. His Hong Kong gallery exhibitions certainly could not have a major impact on a New York market continents and oceans apart. Indeed, the criterion itself of alternate means of communication, as applied in 25 Mastrovincenzo is, in its essence, of dubious constitutional validity. In that case, the court suggested that the artists could simply give their work away, an assertion that logically contradicts the longstanding First Amendment principle that works of art do not receive varying levels of constitutional protection based on whether they are sold. See, e.g., Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750 (1988); Bery v. New York, at 695-696. In fact, what was said in Bery can just as well be said of the expressive tee- shirts in this case: “the street marketing is in fact a part of the message of appellant’s art;” and “[d]isplaying art on the street has a different expressive purpose than gallery or museum shows; it reaches people who might not choose to go into a gallery or museum or who might feel excluded or alienated from these forums. ” Bery, supra, at 696, 698. The response to this argument of the courts in cases such as Mastrovincenzo that vendors can just give their art away, Mastrovincenzo, supra, at 101, or that they have alternate fora for expression ignores the essential character of this activity. Not only is the medium part of the message, but the forum is as well. And the ability to sell to the public in the appropriate venue under the appropriate circumstances is a key part of this activity. As the Second Circuit law currently stands, had appellant been selling photographs of his tee-shirts, stacked in packs, at $20 a piece, instead of the actual tee- shirts, he would have been exempt from licensing under the 26 terms of the Bery consent decree as applied through Bery and Mastrovincenzo. Under Mastrovincenzo, however, the sale of his tee-shirts in public areas became subject to a balancing test that simply adds confusion to an already difficult area of analysis, rather than dispelling it. His tee-shirts - - as opposed to the generically similar items in both Bery and Mastrovincenzo - - supposedly failed to meet this test and he has effectivley been told that, in any event, he can sell them elsewhere, or perhaps, as the court in Mastrovincenzo suggested, just give them away. This treatment of genuine political and artistic expression represents an impermissible infringement of Mr. Lam’s free speech rights and a misapplication of applicable free speech doctrine. The Second Circuit expended considerable thought and effort in Bery and Mastrovincenzo attempting to reconcile the sometimes conflicting needs and interests of vendors and city regulators. Unfortunately, although it was the most recent decision, currently being applied, for the reasons discussed above, Mastrovincenzo was an analytical step backwards, not forward. Should this Court find correct and faithful application of the Mastrovincenzo balancing test would require it to affirm the judgment, it should exercise its recognized function of protecting free speech under the New York State Constitution that does not receive appropriate protection under the Federal Constitution and rule invalid the denial of appellant’s right to freedom of expression. 27 With reference primarily to the recent pronouncement of the Second Circuit in Bery and Mastrovincenzo, the parties below have focused their arguments on the First Amendment of the Federal Constitution. Nonetheless, as in Matter of Patchogue-Medford Congress of Teachers v. Board of Educ. Of Patchogue-Medford Union Free School Dist., 70 N.Y.2d 57, 65- 66 (1987), the “heart of the controversy in this case under both [state and federal] constitutions” is the same - - whether the courts in this case misapplied intermediate scrutiny time/place/manner free speech standards, and this Court should therefore consider the New York Constitution as well as the Federal Constitution in deciding this case. Accordingly, the judgment should be reversed and the charges against appellant dismissed. CONCLUSION FOR THE REASONS STATED, THE ORDER OF THE APPELLATE TERM SHOULD BE REVERSED AND THE ACCUSATORY INSTRUMENT DISMISSED WITH PREJUDICE. Respectfully submitted, STEVEN BANKS MARTIN M. LUCENTE Attorneys for Defendant- Appellant September 2012 STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) MARTIN M. LUCENTE, an attorney duly admitted to practice before the Courts of this State, hereby affirms under the penalty of perjury: On or about September 7, 2012, I served the Hon. Cyrus R. Vance, Jr., District Attorney, New York County, at One Hogan Place New York, New York 10013, attention, Appeals Bureau, ADA Andrew E. Seewald, Esq., with three copies of the combined brief and appendix for People v. Ray Lam, by shipping them via the United States Post Office’s Express Mail service. Dated: New York, New York September 7, 2012 _______________________ MARTIN M. LUCENTE