Trucker Hats: First Amendment Protection

Get your legal news via Gawker: "graffiti artists named Mastro and Nac got an injunction against the city [which effectively allows them to] sell tagged trucker hats on the street without a license [because they] argued (successfully!) that ... they're protected by the First Amendment ... :

Plaintiffs offer for sale in public places without a license articles of clothing that they individually decorate with text and images in what they label a graffiti style. [...] Both Plaintiffs paint articles of clothing, especially hats, using paint pens and spray cans, and sell them from sidewalk displays. [...] Each charges between $10 and $100 per hat."

See the SDNY ruling in Mastrovincenzo v. City of New York pdf (34 pages). The plaintiffs, in their case, relied on Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996), cert. denied, 520 U.S. 1251 (1997) wherein the Second Circuit ruled that the General Vendors Law

license requirement unconstitutionally infringed on the artists’ First Amendment rights to sell their work in public places....

The majority of Judge Marrero's opinion delineates the line between merchandise and art or expressive merchandise, for example:

while Edvard Munch himself would not need a license to sell “The Scream” (or prints of it) from a sidewalk table, a vendor wishing to sell the popular neckties featuring the painting’s distraught figure undoubtedly would need a license. [p.17]

Ultimately, Judge Marrero explains that it's the message and not the medium that's important in finding for plaintiff:

What Plaintiffs paint, not what they paint on, determines whether their work is sufficiently expressive to merit First Amendment protection. See Ayres, 125 F.3d at 1017 (noting that message-bearing tshirt is to peddler “what the New York Times is to the Sulzbergers and the Oschses--the vehicle of her ideas and opinions”). Such is the stuff of First Amendment law. Ultimately, myriad factors will guide any inquiry into whether a vendor’s wares are sufficiently expressive to merit First Amendment protection. Among other criteria, the Court considers: the individualized creation of the item by the particular artist, the artist’s primary motivation for producing and selling the item, the vendor’s bona fides as an artist, whether the vendor is personally attempting to convey his or her own message, and more generally whether the item appears to contain any elements of expression or communication that objectively could be so understood. [p. 27-28]

Holding: Graffiti-style trucker hats, the 21st Century's answer to Chinese-character calligraphy scrolls, don't require vendor licenses.