Bery v. New York

Pursuant to its general-vendors law, New York City prohibited visual artists from exhibiting or selling their works in public places without general-vendors licenses. The city exempted vendors of newspapers, books, and other written material from its licensing requirement. The total number of general-vendors licenses was limited to 853 at a time. Waiting times to receive licenses were three to five years. However, all veterans automatically qualified for licenses and were not subject to the limit. Also, the city placed no limit on the number of vendors of written material. The city’s administrative code restricted the placement, location, and size of vending displays of all licensed general vendors and vendors of written material. Individual artists (plaintiffs) who produced works of visual art like paintings and sculptures had been arrested or harassed by police for displaying and selling their art without a general-vendors license. They claimed that street marketing and the opportunity to share their art in public with people who would otherwise never visit a museum or gallery was an important aspect of their expression. Robert Bery and Robert Lederman (plaintiffs) filed separate actions against the city in which they each sought a preliminary injunction to enjoin enforcement of the general-vendors law’s licensing requirement as an unconstitutional restriction of freedom of expression. The district court denied both motions. The court found that the general-vendors law was a content-neutral regulation intended to deal with street congestion and public safety and that visual arts were less protected than political or religious speech. Bery, Lederman, and the other artists appealed.