Chapter 4 - Constitutional Authority to Regulate Business s18

FBLEC-2e Case Problem with Sample Answer Chapter 1: The Legal and Constitutional Environment of Business

1.7 Case Problem with Sample Answer

For decades, New York City has had to deal with the vandalism and defacement of public property caused by unauthorized graffiti. Among other attempts to stop the damage, in December 2005 the city banned the sale of aerosol spray-paint cans and broad-tipped indelible markers to persons under twenty-one years of age and prohibited them from possessing such items on property other than their own. By May 1, 2006, five people—all under age twenty-one—had been cited for violations of these regulations, while 871 individuals had been arrested for actually making graffiti. Artists who wished to create graffiti on legal surfaces, such as canvas, wood, and clothing, included college student Lindsey Vincenty, who was studying visual arts. Unable to buy her supplies in the city or to carry them in the city if she bought them elsewhere, Vincenty, with others, filed a suit in a federal district court on behalf of themselves and other young artists against Michael Bloomberg, the city’s mayor, and others. The plaintiffs claimed that, among other things, the new rules violated their right to freedom of speech. They asked the court to enjoin the enforcement of the rules. Should the court grant this request? Why or why not? [Vincenty v. Bloomberg, 476 F.3d 74 (2d Cir. 2007)]

Sample Answer:

The court issued an injunction to prohibit the enforcement of the regulations at issue against young adults between eighteen and twenty-one. The defendants appealed to the U.S. Court of Appeals for the Second Circuit, which affirmed the lower court’s issuance of the injunction on the basis of the plaintiffs' First Amendment claims. Applying an “intermediate level of scrutiny” to examine the regulations and consider the propriety of the injunction, the appellate court explained that this meant the rules must further “an important or substantial governmental interest,” which must be “unrelated to the suppression of free expression,” and any “incidental restriction on alleged First Amendment freedoms [must be] no greater than is essential to the furtherance of that interest.” The means chosen must not “burden substantially more speech than is necessary to further the government's legitimate interests. . . . For example, a city has a legitimate aesthetic interest in forbidding the littering of its public areas with paper, but that could not justify a prohibition against the public distribution of handbills, even though the recipients might well toss them on the street.” Why? Because “a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand.” Here, the court found that the “prohibition against young adults' possession of spray paint and markers in public places—because it applies even where the individuals have a legitimate purpose for their use—imposes a substantial burden on innocent expression.” The contrast between the numbers of those cited for violating the rules at odds in this case and those arrested for actually making illegal graffiti also undercut the city's claim that its “goal of eliminating illegal graffiti would be achieved less effectively absent the . . . prohibition[s].” In short, “given [the rules’] hindering of young adults' access to the materials they need for their lawful artistic expression and [the] blanket prohibition against young adults' public possession of graffiti implements, encompassing possession for purely lawful purposes, the challenged subsections appear to burden substantially more speech than is necessary to achieve the City's legitimate interest in preventing illegal graffiti.”