# Bery v. City of New York

> Court of Appeals for the Second Circuit · October 10, 1996 · 97 F.3d 689

URL: https://www.frixlaw.com/law-library/cases/6942437

## Case

- **Full name:** Robert BERY, James Albert Harris, Anne Reiss, Ricardo Antonio Pascual, Artists for Creative Expression on the Sidewalks of New York City, Robert Lederman, Jodi Bogus, Knut Masco, Alexis Portilla and Arthur Robins v. CITY OF NEW YORK Rudolph Giuliani, Mayor, City of New York William Bratton, Chief, New York City Police Department Robert Morgenthau, District Attorney-New York County Richard A. Brown, District Attorney-Queens County William L. Murphy, District Attorney-Richmond County Charles H. Hynes, District Attorney-Kings County Robert F. Johnson, District Attorney-Bronx County Alfred C. Cerullo, III, Commissioner of New York City Department of Consumer Affairs New York City Department of Consumer Affairs Henry J. Stern, Commissioner, New York City Department of Parks & Recreation Marilyn Gelber, Commissioner of the New York City Department of Environmental Protection of the City of New York Environmental Control Board of the City of New York and Anne J. McCarthy, Executive Director of the Environmental Control Board of the City of New York, in her individual and official capacities
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** October 10, 1996
- **Citations:** 97 F.3d 689
- **Precedential status:** Published
- **Opinion:** Concurrence by Mahoney
- **Judges:** Carter, Graafeiland, Mahoney
- **Cited by:** 180 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6942437

## How later opinions describe it (automated extraction)

- finding the City’s licensing requirements for sidewalk art vendors “too sweeping to pass constitutional muster” but stating that such vendors may be properly subjected to appropriate time, place, and manner restrictions
- holding that traditional forms of art, including paintings, photographs, prints, and sculptures, “always communicate some idea or concept” and are therefore presumptively covered by the First Amendment
- holding that paintings, photographs, prints, and sculptures, are visual forms of art that “always communicate some idea or concept” and are therefore presumptively covered by the First Amendment
- holding that total ban on sidewalk art does - 11 - not leave open alternative means of communication because alternative display in galleries or museums would not reach the same audience
- noting that without the ability to make money through the sale of art, artists’ ability to create art in the first place would be curtailed and so the proper analysis to apply for a case involving the licensing of commercial street art is a content-neutral one

## Opinion text

MAHONEY, Circuit Judge,
concurring in the judgment and partly in the opinion of the Court:
I concur in the judgment of the Court and in the opinion of the Court except for its discussion of the Equal Protection Clause of the Fourteenth Amendment.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6942437. Public record. Not legal advice.