Legal Commentary

Kathleen Bergin at the First Amendment Law Professor Blog has spotted an interesting set of proposed regulations on vending in New York City public spaces.  The proposed regulations have some seemingly standard rules about how vendors can operate (don't block sidewalks, etc), plus a requirement that they obtain a license from the city, which are apparently given out on a first-come, first-served basis.

What's interesting is that the proposed regs single out "vendors of expressive matter," and do so in what seems to be a strange way.  First, they exempt those vendors from the general license requirement.  So far so good -- presumably, favorable treatment of speech and speakers does not raise a constitutional issue (but see Minneapolis Star v. Minn Comm'r of Revenue, where the Court expresses some concern about favorable differential taxation of the press).

But then it gets a little sticky.  The general exemption from the license requirement doesn't apply to vendors of expressive matter in certain high-traffic public spaces (e.g., certain entrances to Central Park).  In those areas, those vendors (call them "speakers") have to get a license.  It's not clear whether they're part of the general licensing process, or whether instead they have to compete for distinct speaker licenses, but part of the city's explanation for the regs states that the rules "identify[] locations . . . where expressive matter vendors can operate."  So that sounds like they do in fact impose distinct restrictions on those types of vendors.

The city's explanation for the proposed regs muddies the water even further.  It states that the regs are designed "to address concerns . . . related to the proliferation, in certain parks, of expressive matter vendors and the impact they can have on parkland and other park visitors."  This should be a red flag.  Is there something special about expressive matter vendors that causes more crowding issues than, say, hot dog vendors?  It's not clear.  The closest the explanation gets, I think, is its statement that in certain locations "the general rules concerning vending . . . are not sufficient to properly regulate expressive matter vending so as to avoid such areas from being overwhelmed by vendors in a matter that significantly interferes with the experience and comfort" of the park-visiting public.

The point is a simple one: if there are too many vendors in an area then it's appropriate to limit them.  But why single out vendors of expressive matter as a distinct part of the problem?  If it's because they comprise a large percentage of all vendors, then presumably a general cap would take care of the problem: first-come, first-served, regardless of whether you sell a painting or a hot dog.  If it's because something non-expressive about their activity causes the problem (e.g., if people crowd around artists more than around hot dog vendors) then maybe special treatment for them might make sense, though it would certainly be safer (in terms of the First Amendment) to just say "no vendor shall allow more than five people to congregate," or something to that effect -- though I realize that's unrealistic, and maybe that's part of the problem with a more nuanced regulation.

It may well be that the city's concern is that they want a balance of vendors in these areas -- some artists, some hot dog vendors, some hat salesmen.  I suppose in a case like that one could say that the regulation is not aimed at the expression per se, though even as I type that I have my doubts.  After all, would we allow the city to say "we don't like those low-class bumper sticker hawkers at Columbus Circle; we'd much rather have a better mix of vendors?"

It's an interesting issue.  The regulations are certainly not as problematic as the City of Los Angeles's attempt, a couple of decades ago, to ban "all First Amendment activity" at Los Angeles Airport.  Still, anytime there's a restriction explicitly tied to whether the activity is expressive, you have to wonder.  I'd be curious if anyone has any thoughts about this, especially after reading the proposed regs.