While plaintiffs' selling activity appears superficially similar to the sale of message-bearing goods and T-shirts, the Court concludes that offering perfume oils and incense "in exchange for donations" is not an expressive activity that is "inextricably intertwined" with conveying a message about Islam. This case is distinguishable from Gaudiya and the T-shirt cases because the goods themselves do not bear a message, nor does their sale convey a particularized message that would likely be understood by the purchasers. While plaintiffs claim that they were simultaneously involved in disseminating written matter about Islam and propagating the message of Islam by engaging pedestrians in discussion, these perfectly permissible missionary activities are not "intextricably joined" to the sale of oils and incense. The act of selling oils and incense simply is not sufficiently intertwined with the expression that plaintiffs are free to engage in, such as discussing the role of these products in Islam and instructing passers-by in their use. The Court finds persuasive the analysis of then-Circuit Judge Ginsburg in ISKCON, where she reasoned that Krishna beads that "serve as an instrument of prayer and meditation . . . may be an aid to spiritual activity, but they are not in themselves communicative." 61 F.3d at 961 (Ginsburg, J., concurring in part and dissenting in part). Therefore, their sale is not entitled to First Amendment protection. Moreover, even if the beads communicate a message, "their sale does not add anything to ISKCON's ability to communicate its ideas to passers-by . . . ." Id. The same is true of plaintiffs' vending of fragrant oils and incense.
Plaintiffs also argue that their ability to raise funds by selling these goods is what enabled them to continue their proselytizing work. But the charitable solicitation cases are of no avail to plaintiffs. First, plaintiffs have made no allegation that they are engaged in fund-raising activity along the lines recognized in those cases. Plaintiffs' vending constituted a major, if not exclusive, source of their livelihood. See Al-Amin Depo. at 43, 45, 54; Sayeed Depo. at 20, 31; Smalls Depo. at 12-13, 16-17. While plaintiffs stated that they occasionally made donations to various mosques, they were not soliciting donations on behalf of these mosques or any organized charity. See Al-Amin Depo. at 52-53; Sayeed Depo. at 26, 33-34; Smalls Depo. at 16. Allocating a portion of one's earnings toward charitable contributions does not render the income-producing activity "charitable fund-raising." Second, and more importantly, the reason charitable solicitation is protected activity is "not because the First Amendment contemplates the right to raise money, but rather because the act of solicitation contains a communicative element." Friends of the Vietnam Veterans, 116 F.3d at 497. The sale of oils and incense lacks that communicative element.
Plaintiffs primarily rely on Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996), cert. denied, 138 L. Ed. 2d 174, 117 S. Ct. 2408 (1997), which invalidated the licensing requirement of the General Vendors Law as applied to visual artists selling their work in public spaces. Their reliance is misplaced. In that case, the Second Circuit found that visual artwork is expression, capable of depicting and communicating "ideas, concepts and emotions" like the written word, albeit in a different form, and is therefore entitled to full First Amendment protection. Id. at 695. This determination led the court to the well-established principle that "the sale of protected materials is also protected." Id. at 695-96 (citing Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 756 n.5, 768, 100 L. Ed. 2d 771, 108 S. Ct. 2138 (1988)). Plaintiffs' attempt to analogize their activity to the circumstances in Bery is flawed because vials of perfume oil and sticks of incense lack an inherently communicative element, and consequently, their sale or exchange for donations also is not expressive activity. Cf. ISKCON, 61 F.3d at 954 (where court did not decide whether Krishna beads are "sufficiently expressive to merit First Amendment protection").
Bery found that the licensing requirement could not withstand scrutiny as a content-neutral time, place and manner regulation because it functioned as "a de facto bar preventing visual artists from exhibiting and selling their art in public areas in New York" since general vendor's licenses are virtually impossible to obtain. 97 F.3d at 697. However, the court contrasted the license scheme with the permissible regulations that ban general vending in certain congested areas. Id. at 697-98. Significantly, Bery emphasized that "the City may enforce narrowly designed restrictions as to where appellants may exhibit their works in order to keep the sidewalks free of congestion and to ensure free and safe public passage on the streets." Id. at 697. Bery explicitly recognized the valid exercise of state police power to effect "crowd management and control, or to prevent congestion or to keep the streets clear to allow unimpeded passage of the public over the City's thoroughfares" by means of time, place and manner regulations, such as those embodied in Admin. Code § 20-465. Id. at 698. Even intrinsically expressive activity can be restricted in "particular areas of the City where public congestion might create physical hazards and public chaos." Id. at 697-98. At issue in this case is a commercial zone where general vending is prohibited even with a general vendor's license -- precisely the type of content-neutral time, place and manner regulation approved of by Bery.
See Baker v. Peddlers Task Force, 1996 U.S. Dist. LEXIS 19140, 1996 WL 741616, at *1-2 (S.D.N.Y. Dec. 30, 1996) (Bery prohibits application of licensing requirement to photographers, but total vending ban in certain areas applies).
The instant case does not directly involve the licensing requirement. Plaintiffs argue, however, that they are effectively barred from peddling their oils and incense anywhere in New York City because their prospects of obtaining a vendor's license are nil. But the reason Bery invalidated the licensing requirement as applied to visual artists is because the court found visual art to be protected by the First Amendment. That is not the case with oils, incense or bracelets.
For the reasons stated above, defendants' motion for partial summary judgment is granted as to plaintiffs' First Amendment claims.
Dated: Brooklyn, New York
October 14, 1997
RAYMOND J. DEARIE
United States District Judge