The City apparently looks upon visual art as mere "merchandise" lacking in communicative concepts or ideas...Such myopic vision not only overlooks case law central to First Amendment jurisprudence but fundamentally mis-perceives the essence of visual communication and artistic expression.
Bery v. City of New York, 97 F.3d 689, 695 (2d Cir. 1996)
Case Study: Reno, NV
Summary: On January 21, 2013, during a seemingly innocuous city council agenda item, it was announced that the city would be moving forward with proposed changes to Reno Municipal Code 5.14 which provided for rules governing for the use of parks and sidewalks for vending purposes.
The proposed changes did not carve out an exemption 'purely expressive' activities. If passed, it would make it necessary for fully protected speakers to pay a fee and show identification in order to obtain a license to conduct self-expressive activities on sidewalks or in city parks. Final approval from the council was expected in just 6 weeks.
On April 16th, 2014, after a protracted, costly and often painful process, the Reno City Council approved an ordinance that is one of the most progressive of its kind in the country. It provides for an exemption to business license and vendor permit requirements for conduct that is considered 'purely expressive'. It provides clear definitions for fully protected conduct, as well as defining types of conduct that while expressive, also serve a dual function and therefore receive only limited protection on the public fora.
The new ordinance also included language that clearly indicates, that the protections extended to the exchange of the purely expressive material (i.e. paintings, sculptures, or written materials) for money or the collecting of remunerations for a performance.
The action taken by the council that day to update the old vendor codes ensures that the public will be informed and knowledgeable of their rights and law enforcement will be able to establish boundaries that maintain the integrity of public displays of pure self-expression as well as other health, safety and welfare considerations. To date, none of the initial fears or concerns of those opposed to these changes have come to fruition.
Whether a city council person, county commissioner, or other elected official, you most likely did not know that you inherited codes that violate the rights of all people, disproportionately impacting of the more disadvantaged members of your community. Beside the obvious downsides of any law which chills the natural rights of all people, maintaining these codes leaves government bodies vulnerable to litigation that can prove quite costly.
There are more important considerations than the legal necessities or financial burdens. Civic leaders should recognize that exempting such activities from business license and vendor permit codes is not just a legal requirement, it is necessary for the creation of a robust, accessible and equitable ‘market place of ideas’ that is essential to a healthy, well connected, and adaptive community capable of ensuring our individual liberty and promoting our collective interests.
Creative and forward thinking civic leaders will see this is an opportunity to be capitalized on, not a problem to be dealt with. Opening your parks and sidewalks for artists can create opportunities to revitalize communities, uplift the human spirit, and strengthen the connections between friends, neighbors, and those we have yet to meet.
The end result of all this is that the bulk of the real difficult work has been done courtesy of the Reno tax payer. What the Reno code provided was a framework we can use to develop a code that meets the specific needs of your communities, while ensuring that the important legal consideration are handled correctly.
The code at the top of this page is essentially the code that was adopted by the City of Reno with a few modifications. You can use this as a starting point to begin conversations in your community about the value of upholding our First Amendment rights to conduct Public Displays of Expression.
Watch Reno City Council Learn about Art & the First Amendment