New Orleans Book Ban - Background

Litigation Backgrounder

Challenging Barriers To Free Speech & Free Enterprise In New Orleans

City of Literary Lore Bans Book Vending

Introduction

Josh Wexler and Anne Jordan Blanton love books and dream about starting their own bookselling business.  After finishing college, they both worked at used bookstores in New York.  Josh describes it as “the best job I’ve ever had.”  They don’t have enough money to open their own bookstore, so when they moved to New Orleans in August 2001, they immediately began planning to start a business vending books on the street. 

As of April 2003, Josh and Jordan still had not opened their business.  They have the books, the table and the motivation to succeed, but they ran into a snag.  In the home of Tennessee Williams and other literary giants, the City of New Orleans flatly prohibits selling books on the street.  Josh and Jordan could sell food, [1] flowers [2] or razor blades. [3]   They could even distribute advertising brochures. [4]   But no John Steinbeck, no Tom Wolfe and no Tennessee Williams.  They would also like to sell blank journals, but those are prohibited, too.  Pencils are legal, [5] but one can’t buy journals in which to write with those pencils.

At first, Josh and Jordan thought that there was some kind of mistake, but after two visits and more than a dozen calls to City officials, it’s quite clear that the City has no intention of letting them and their books out on the street.  Josh and Jordan want to engage in an honest and honorable occupation, and they want to operate legally, without fear of arrest, fines or being shut down.

To do that without running afoul of the law, however, Josh and Jordan first must change that law.  And that is why they have turned to the courts with the simple request that the City of New Orleans be ordered to respect the basic rights of free speech and economic liberty they enjoy as American citizens—to pursue their chosen livelihoods without interference from New Orleans’ unconstitutional laws and policies.

On April 8, 2003, Josh and Jordan filed suit in the U.S. District Court for the Eastern District of Louisiana against the City of New Orleans, seeking to have the City’s blatantly unconstitutional laws and policies struck down.  These laws violate the constitutional rights of entrepreneurs like Josh and Jordan by arbitrarily denying them the right to earn an honest living in their chosen profession. 

The ramifications of this lawsuit extend far beyond New Orleans and the parties involved.  Other cities refuse or have tried to refuse to allow book vending on the street. [6]   Hundreds, if not thousands, of cities limit street vending of books and other goods in all kinds of irrational ways—allowing some businesses and arbitrarily excluding other perfectly harmless ones.  Rather than focusing on simple vending rules to protect health, safety and traffic flow, most cities impose whatever limits and costs happen to strike official fancy.

Anti-competitive licensing requirements, unfortunately, are not unique to the street vending business.  More than 500 occupations—approximately 10 percent of all jobs in the United States—require that individuals have permission from the state, in the form of a license, before they can pursue their chosen occupation.  For many of these occupations, from shorthand court reporter to fence installer, the rationale for licensing is non-existent. [7]   Thus, the resolution of this lawsuit could open up opportunities for entrepreneurs facing arbitrary conditions of entry in other fields as well.

This lawsuit seeks to establish constitutional limits on government’s authority to condition entry into a chosen occupation.  Prohibitions that limit businesses engaged in speech (like book selling) deserve special consideration, but even for prohibitions on other legitimate occupations (like selling blank journals), there must be a legitimate public health or safety purpose for any regulation limiting entry, and then there must be a rational fit between that end and the regulatory means adopted to achieve it.  In other words, laws must actually advance the public purposes for which they were enacted.

The Plaintiffs

Books are taking over the home of Josh Wexler and Jordan Blanton.  There are books lining the walls, books on the floors, books in hallways, and books filling the closets.  Many are part of their personal library, but more than 500 have piled up in anticipation of the opening of their would-be book vending business.

Josh and Jordan both worked at used bookstores in New York after college.  In August 2001, they moved together to New Orleans, where Jordan grew up and where her parents still live.  Their plan was to turn their literary passion and breadth of reading into their own business.  Because they didn’t have enough money to open an actual bookstore, they decided to begin a business vending books on the street.  Then, if it was successful, they could eventually open their own store.  They loved the idea of becoming neighborhood booksellers.  They envisioned their stand as a community fixture, someplace regular customers would stop on their way home from work or on other errands to pick up another book and chat about the relative merits of the previous one.

Josh and Jordan consulted with other booksellers.  They bought a table and amassed their current and still-swelling collection.  The books they have selected include literary classics, children’s books, contemporary literature, political and social commentary, science, and philosophy.  They wanted their business to provide quality reading material, so they have not selected their books indiscriminately.  Instead they have focused on titles and authors they have read and liked, recommendations from friends, and books on topics they find interesting.  The City has suppressed their speech for more than a year, so they plan to sell a number of previously banned books, including D.H. Lawrence’s Lady Chatterley’s Lover and Harper Lee’s To Kill a Mockingbird.  Jordan also makes blank journals, and Josh and Jordan plan to sell those as well.

Josh and Jordan are all set to open—in fact, they’ve been ready for more than one year.  But they want a legal business, and in order to start one, they will have to do battle with the opponents of literature who work at the City of New Orleans Department of Finance. 

Because We Say So

For more than a year, Josh and Jordan have been trying to figure out why the City won’t let them sell their books and journals.  Books pose no health risk to the public; they are less dangerous than razor blades and no more disruptive than flowers or advertising flyers, all of which may be sold on the street.  Josh and Jordan don’t even want to set up their business in the French Quarter, where vending businesses are more tightly controlled.  They want a neighborhood business with the potential for regular and repeat customers.

The office of permitting and business registration within the Department of Finance says there is a list of vending permits available in New Orleans, and books and journals aren’t on it.  Josh and Jordan inquired if they could sell their books without a permit.  “Absolutely not,” they were told.  According to City officials, no one can sell anything without a permit, so they need a permit to sell the books.  Because there is no book vending permit, they’re just out of luck.  City representatives have shown either indifference or hostility in responding to Josh and Jordan’s repeated attempts to obtain permission to open their business.  One annoyed City official, tired of being asked to explain the City’s incomprehensible policy, told Josh to get a lawyer if he wanted any more information. 

New Orleans Has a Strong Tradition of Literature and Suppression of Small Business

New Orleans has been home to an astonishing number of well-known authors and serves as the setting of countless works of fiction and poetry.  Just to name a few, Tennessee Williams, Kate Chopin, F. Scott Fitzgerald, William Faulkner, John Dos Passos, Truman Capote and John Kennedy Toole all made their home at one time in New Orleans.  Mark Twain, Jack Kerouac, Michael Ondaatje and Alexis de Tocqueville also visited and wrote about New Orleans. 

The city has five prominent universities.  It hosts literary festivals and even offers literary tours.  Yet there are few bookstores and even fewer ones that sell used books.  Josh and Jordan appreciate New Orleans’ rich literary history and believe there is tremendous opportunity for a neighborhood bookseller.  If not prevented by the City government, they would sell these and other New Orleans authors. 

Josh and Jordan also are pursuing the classic American dream of entrepreneurship.  There were more than 16 million businesses without employees (that is, self-run) in 1999, the latest date for Census Bureau Statistics. [8]   Small businesses create two-thirds of net new jobs. [9]   In Louisiana, small businesses make up 97.4% of all businesses, and an estimated 131,316 individuals there were self-employed in 1999. [10]  

Street vending has always been a significant means by which immigrants and other entrepreneurs begin their careers.  Peddling, trading, or street vending pre-dates the founding of the United States.  Peddling was seen as “the first step to amassing a fortune” as early as 1699. [11]   Early American peddling included selling small goods and, of course, printed material. [12]

It is particularly appropriate that this case originates in New Orleans, because New Orleans has been the site of some of the worst legal decisions restricting economic liberty.  This case gives courts an opportunity to correct these older decisions.

In the 1873 Slaughter-House Cases, a sharply divided U.S. Supreme Court upheld the decision of the City of New Orleans to pick one slaughter-house out of several operating in the city and give it a complete monopoly.  The decision effectively read the “Privileges or Immunities Clause,” which forbids states from abridging the privileges or immunities of citizenship, out of the U.S. Constitution.  After almost 130 years of ignoring the Privileges or Immunities Clause, however, the U.S. Supreme Court breathed new life back into this vital constitutional provision in May of 1999.  In Saenz v. Roe, the Court used the clause to strike down a California law that limited welfare benefits for new residents. [13]   Although Saenz dealt specifically with the right to travel as being protected by the Privileges or Immunities Clause, the Court’s use of the clause and the language of the decision cracks open the door for its reestablishment as the primary constitutional protection for economic liberty, as it was originally intended to be. [14]

In 1976, the U.S. Supreme Court upheld a New Orleans ordinance prohibiting most vendors from operating in the French Quarter.  Only vendors that had been operating there for more than eight years were allowed to remain.  Everyone else, including one food vendor who had been operating for two years and challenged the law, were kicked out.  According to the Court, the ordinance was reasonably directed at preserving the Quarter as a tourist attraction. [15]   Perhaps emboldened by this decision, the City of New Orleans now imposes street vending rules that make no sense at all.  This case does not involve a tourist area, and the City’s selection of permissible and impermissible vending items is so arbitrary that it cannot survive even the most cursory judicial scrutiny.  This case is perfectly suited to vindicate the right to economic liberty in the city that has done the most to suppress that fundamental American right.

Litigation Strategy: Upholding Two Fundamental Rights

The Institute for Justice is committed to a program of litigation that will help restore judicial protection for free speech and economic liberty—basic rights of every American.  On April 8, 2003, the Institute for Justice filed a lawsuit in the U.S. District Court for the Eastern District of Louisiana challenging the City of New Orleans’ unconstitutional prohibition against selling books and blank journals.  The defendants are the City of New Orleans, its Department of Finance, and Reginald Zeno, the head of the Department of Finance.  That Department is responsible for issuing—or in this case, refusing to issue—permits to sell goods on the sidewalks of New Orleans. 

Selling books is a classic exercise of free speech, [16] which is of course protected by the First Amendment. [17]   While the government may place some limitations on speech, such limits must be content-neutral and be narrowly tailored to advance a significant government interest.  Even then, cities must leave open ample alternative channels for communication. [18]   It’s hard to know what New Orleans’ justification could possibly be, but whatever it is, a total prohibition on vending literature cannot be narrowly tailored to advance a significant government interest.  Josh and Jordan challenge the prohibition against book vending as an obvious violation of free speech.

Josh and Jordan also challenge the prohibition against selling blank journals as an arbitrary interference with their right to earn an honest living in their chosen occupation.  Under the due process, equal protection, and privileges or immunities clauses of the Fourteenth Amendment, the government may only restrict a person’s right to pursue his or her chosen livelihood when there is a “rational basis” for the restrictions.  In order to establish a rational basis, the government must show that there is a reasonable fit between the government-imposed restrictions in question and a legitimate public purpose.  The Institute for Justice litigates many cases challenging excessive and arbitrary regulation of entrepreneurs.  For example, in December 2002, the U.S. Court of Appeals for the Sixth Circuit agreed with the Institute for Justice and Tennessee entrepreneurs that requiring people who sell caskets to obtain funeral director’s licenses violated due process and equal protection. [19]   New Orleans’ haphazard system of  allowing vending razor blades and pencils but not books and journals also wholly lacks a rational basis.

Litigation Team

The lead attorney in this case for the Institute for Justice is Senior Attorney Dana Berliner, who litigates economic liberty cases and property rights cases nationwide.  She will be joined by William H. Mellor, President and General Counsel of the Institute for Justice and also lead counsel in many IJ economic liberty cases.  Attorney Robert S. Eitel, who regularly litigates commercial, employment and civil rights cases in federal and state courts, ably assists the Institute for Justice as local counsel in New Orleans.

 

For more information, contact:

            John E. Kramer (Vice President for Communications)

            Lisa Knepper (Director of Communications)

            Institute for Justice

            1717 Pennsylvania Ave., N.W.

            Suite 200

            Arlington, VA  22203

            (703) 682-9320



[1] New Orleans Code § 110-186 et seq.

[2] New Orleans Code § 110-51 et seq.

[3] New Orleans Code § 30-70.

[4] Ibid.

[5] Ibid.

[6] See, e.g., Baltimore City Code §§ 17-1 to 17-3 (allowing vending of certain items but not books); Celli v. City of St. Augustine, 214 F. Supp. 2d 1255 (M.D. Fla. 2000).

[7] See S. David Young, The Rule of Experts:  Occupational Licensing in America (1987); Rottenberg, Simon, ed., Occupational Licensure and Regulation (1980); Benjamin Shimberg, et al., Occupational Licensing:  Practices and Policies (1973).  See also Seven City Study on Barriers to Entrepreneurship, performed by the Institute for Justice and available at <www.ij.org/publications/other>.

[8] U.S. Census Bureau, Nonemployer Statistics, 2000 All Sectors United States (available at www.census.gov/epcd/nonemployer/2000/us/US000.HTM).

[9] Small Business Administration Office of Advocacy, Office of Economic Research, Research Publications 2002, (available at www.sba.gov/advo/stats/res_pub.pdf).

[10] Small Business Administration Office of Advocacy, 2002 Small Business Profile:  Louisiana (available www.sba.gov/advo/stats/profiles/02la.pdf).

[11] Richardson Wright, Hawkers and Walkers in Early America 22-23 (1927).

[12] Wright, supra, at 50-53; William J. Gilmore, “Peddlers and Dissemination of Printed Material in Northern New England, 1780-1840,” in Itinerancy in New England and New York, at 76-89 (Peter Benes, ed. 1984).

[13] 526 U.S. 489 (1999).

[14] See Clint Bolick, Unfinished Business 54-60 (1990); William H. Mellor, The Tragic Legacy of the Slaughterhouse Cases:  Putting the 14th Amendment Back on Course, Vital Speeches (July 1, 1998).  

[15] City of New Orleans v. Dukes, 427 U.S. 297 (1976).

[16] See, e.g., Winters v. New York, 333 U.S. 507, 508 (1947).

[17] U.S. Const., amend. I.

[18] Ward v. Rock against Racism, 591 U.S. 781, 791 (1989).

[19] Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002).


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