the public health, safety and welfare are threatened by the unfettered use of city streets for commercial activity by unlicensed, and therefore illegal, general vendors. Such illicit operations have a pernicious effect on both the tax base and economic viability of the City. Unlicensed general vendors do not pay taxes, often sell stolen, defective or counterfeit merchandise .... The practice of selling their wares ... impedes the flow of pedestrian traffic, caus[es] the overflow of traffic, and, at worst, it creates the potential for tragedy.
Courts must determine what constitutes expression within the ambit of the First Amendment and what does not. This surely will prove difficult at times, but that difficulty does not warrant placing all visual expression in limbo outside the reach of the First Amendment's protective arm. Courts have struggled with such issues in the past; that is not to say that decisions are impossible.
Among other criteria, the Court considers: [1] the individualized creation of the item by the particular artist, [2] the artist's primary motivation for producing and selling the item, [3] the vendor's bona fides as an artist, [4] whether the vendor is personally attempting to convey his or her own message, and [5] more generally whether the item appears to contain any elements of expression or communication that objectively *88 could be so understood. No one factor can control the outcome—as is the case in connection with many other judicial decisions concerning borderline issues, the criteria fit together to form a matrix. Certainly an item may be sufficiently expressive to fall within the realm of the First Amendment regardless of, for example, the educational background of its creator. At bottom, the purpose of the inquiry is to determine the degree of the item's expressiveness, which may best be accomplished by examining it in the light of objective considerations.
The Court may grant a preliminary injunction to stay government action taken in the public interest pursuant to a statutory scheme when the moving party establishes [1] that it will suffer irreparable harm absent the injunction and [2] that it is likely to succeed on the merits of its claim. [Because] [i]t is well settled that the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury ... [the relevant issue in this case is] [p]laintiffs' likelihood of success on the merits of their claims.
*90 ORDERED that defendants ... are enjoined from enforcing New York City Administrative Code § 20–453 against Plaintiffs pending the final resolution of this litigation in this Court[.]
*99 The City's licensing requirement was intended to catch within its net merchants engaged solely in commerce of ready-made goods that clog the sidewalks and compete unfairly with legitimate stores. Applied overbroadly, as Defendants would do, the Ordinance essentially would impose a chilling effect on genuine artists whose true calling is art and not commerce, and whose manifest purpose may be to create expression rather than markets, even if at times some of their work may skirt the line between expressiveness and merchandise. Such an extension of the licensing regime would force artists to confront an undue dilemma: either to quell their creativity or to risk arrest if they believe their work is sufficiently expressive to fall within the protection of the First Amendment. Freedom of expression is designed precisely to bar the government from compelling individuals into that speech-inhibiting choice.
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