without difference here. See, e.g., Riley, 487 U.S. at 801, 108
S.Ct. 2667 (stating that speaker's rights are not lost merely
because compensation is received).
Krafchow contends that through communicating with his
"customers" he teaches by attempting to give his patrons a
heightened sense of spirituality. Whether any given patron views
the exercise as pure entertainment or as somehow personally
enlightening is irrelevant. The likelihood that one would
understand the message conveyed is dependent upon Krafchow's
ability to communicate with a customer and the customer's own
beliefs; considerations which are too subjective and specific to
alter the course of a constitutional analysis.
This Court hastens to note that by finding Krafchow's
activities protectable as speech, it is not pronouncing a broadly
applicable constitutional right to perform Tarot readings.
Rather, the circumstances presented here are quite unique.
Defendant does not dispute Krafchow's claim that he spent ten
(10) years in Israel where he devoted considerable time studying
the Kabala. Nor does Defendant contest Krafchow's claim that
beyond that ten-year period, he studied both the Kabala and the
Torah for more than half of his adult life. Krafchow's claim that
his readings are based on interpretations of religious text is
afforded more merit here than it perhaps would otherwise.
Relative to the posters, while they were not connected to his
card readings per se, they were also protected under the First
Amendment as visual art. See gen. Bery, 97 F.3d at 695 ("Visual
art is as wide ranging in its depiction of ideas, concepts and
emotions as any book, treatise, pamphlet or other writing, and is
similarly entitled to full First Amendment protection.")
(footnote omitted). The poster is approximately 15.5" × 20" and
it has "Woodstock N.Y." printed in black lettering at the very
bottom over a blue and green background. Just above that are two
mirror images of Krafchow holding a staff and seated at a table
with his Tarot cards before him. Moving further up on the face of
the poster, two rows of "head shots" of Krafchow are shown from
different angles on a violet and yellow background. The yellow
portions of the poster are made to look like flames emanating
from behind the two rows of photographs. At the very top-middle
portion of the poster is another photo of Krafchow wearing a
multi-colored t-shirt in a different pose and with the words
"Life is Art" printed slightly above. At the very least, the
poster attempts to convey its express philosophical message.
Whether some self-promotion or advertisement is connected to the
message is not dispositive. Consequently, this Court finds that
both the card readings and the poster sales were protected
Having found that Krafchow's activities were protected under
the First Amendment, this Court now considers whether the Vending
Law was a proper time, place, or manner restriction. The
government bears the burden of demonstrating that a time, place,
or manner restriction is lawful. See Eastern Conn. Citizens
Action Group v. Powers, 723 F.2d 1050, 1052 (2d Cir. 1983). In
order to balance the appropriate considerations and assess each
party's ability to satisfy its respective burden, this Court
first sets forth the standard against which it will measure the
constitutionality of the Vending Law.
This depends in part upon the forum at issue. Cornelius v.
NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 800, 105
S.Ct. 3439, 87 L.Ed.2d 567 (1985). "`[C]onsideration of a forum's
special attributes is relevant to the constitutionality of a
regulation since the significance of the governmental interest
must be assessed in light of the characteristic nature and
function of the particular forum involved.'" United States v.
Kokinda, 497 U.S. 720, 732, 110 S.Ct. 3115, 111 L.Ed.2d 571
(1990) (quoting Heffron, 452 U.S. at 650-51, 101
S.Ct. 2559) (in turn citing Grayned v. City of Rockford,
408 U.S. 104, 116-17, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) and
Lehman v. City of Shaker Heights, 418 U.S. 298, 302-03, 94
S.Ct. 2714, 41 L.Ed.2d 770 (1974)).
The Supreme Court has recognized the following three general
types of forums: (1) "quintessential public forums . . . which by
long tradition or by government fiat have been devoted to
assembly and debate," such as "streets and parks"; Perry
Education Assn. v. Perry Local Educators' Ass'n, 460 U.S. 37,
45-46, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983); see also Heffron,
452 U.S. at 651, 101 S.Ct. 2559 ("A street is continually open,
often uncongested, and constitutes not only a necessary conduit
in the daily affairs of a locality's citizens, but also a place
where people may enjoy the open air or the company of friends and
neighbors in a relaxed environment."); (2) state-created
semi-public forums opened "for use by the public as a place for
expressive activity," such as school board meetings; and (3)
nonpublic forums or public property "which is not by tradition or
designation a forum for public communication." Id. If, the
regulation affects a non-public forum, courts apply a
reasonableness standard. Kokinda, 497 U.S. at 726, 110 S.Ct.
3115; see also Board of Airport Comm'rs of Los Angeles v. Jews
for Jesus, Inc., 482 U.S. 569, 572-573, 107 S.Ct. 2568, 96
L.Ed.2d 500 (1987). If, however, a regulation affects speech in a
public forum, courts animate a more stringent inquiry. Kokinda,
497 U.S. at 726, 110 S.Ct. 3115.
Here, the Town does not challenge Krafchow's contention that
the Village Green and all of the sidewalk areas designated for
commercial activity pursuant to the Vending Law were public
fora.*fn4 Indeed, the Village Green is not fenced in or
otherwise separated from public access; it is centrally located
and near a bus stop. Though the Village Green is only a small
area of approximately 145 feet by 50 feet, see Kellogg Dep. ¶
4, an area "does not lose its status as a traditional public
forum simply because it . . . is `physical[ly] narro[w].'"
Frisby v. Schultz, 487 U.S. 474, 480, 108 S.Ct. 2495, 2500, 101
L.Ed.2d 420 (1988). The case sub judice, therefore, concerns the
regulation of speech in a public forum.
As a result, the Town could have imposed "reasonable
restrictions on the time, place, or manner of protected speech,
provided the restrictions `[were] justified without reference to
the content of the regulated speech, that they [were] narrowly
tailored to serve a significant governmental interest, and that
they [left] open ample alternative channels for communication of
the information.'" Ward v. Rock Against Racism, 491 U.S. 781,
791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (quoting Clark v.
Community for Creative Non-Violence, 468 U.S. 288, 293, 104
S.Ct. 3065, 82 L.Ed.2d 221 (1984)). If the restriction was not
content neutral, however, then the defendant must show how the
restriction was narrowly tailored to fit a compelling state
interest. See Consolidated Edison Co. of New York, Inc. v.
Public Service Comm'n of New York, 447 U.S.
530, 536, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980) ("[W]hen
[a]regulation is based on the content of speech, governmental
action must be scrutinized more carefully to ensure that
communication has not been prohibited `merely because public
officials disapprove the speaker's views.'") (quoting Niemotko
v. Maryland, 340 U.S. 268, 282, 71 S.Ct. 328, 95 L.Ed. 280
(1951)). See also United States v. Grace, 461 U.S. 171, 177,
103 S.Ct. 1702, 75 L.Ed.2d 736 (1983). The first issue to
address, then, is whether the restriction imposed is
content-neutral. See Heffron, 452 U.S. at 648, 101 S.Ct. 2559
("A major criterion for a valid time, place and manner
restriction is that the restriction may not be based upon either
the content or subject matter of speech.") (internal quotations
"The principal inquiry in determining content neutrality . . .
in time, place, or manner cases . . . is whether the government
has adopted a regulation of speech because of disagreement with
the message it conveys." Ward, 491 U.S. at 791, 109 S.Ct. 2746.
The Ward Court explained that
[t]he government's purpose is the controlling
consideration. A regulation that serves purposes
unrelated to the content of expression is deemed
neutral, even if it has an incidental effect on some
speakers or messages but not others. . . . Government
regulation of expressive activity is content neutral
so long as it is justified without reference to the
content of the regulated speech.
491 U.S. at 791-92, 109 S.Ct. 2746. The issue then is whether the
effect the law has on different speakers is incidental or direct
and whether or not it is justified with reference to content.