The Art and Antique Dealers League of America, Inc. v. Basil Seggos

Background

The Art and Antique Dealers League of America, Inc. and The National Antique and Art Dealers Association of America, Inc. are trade organizations representing art and antique dealers. They sued Basil Seggos, the Commissioner of the New York State Department of Environmental Conservation (DEC). The plaintiffs challenged the constitutionality of New York’s State Ivory Law, Environmental Conservation Law § 11-0535-a, and DEC licenses issued under that law.

The State Ivory Law generally provides that no person may sell, offer for sale, purchase, trade, barter, or distribute an ivory article. The statute defines an ivory article as an item containing worked or raw ivory from any species of elephant or mammoth. The law contains exceptions, but the opinion states that they are more limited than the comparable exceptions under the federal Endangered Species Act.

DEC licenses permit certain ivory trade under the state-law exceptions. The licenses prohibit licensees from physically displaying for sale items that are not authorized for sale within New York. Those items may still be shown in advertisements, catalogs, and online if the images include a notice stating that the item cannot be purchased or sold within New York State.

The plaintiffs sought summary judgment—a ruling without a trial when the record shows no genuine dispute over a material fact—asking for a declaration that the State Ivory Law was unconstitutional and void and a permanent injunction against its enforcement. The defendant cross-moved for summary judgment seeking dismissal of the action. The Humane Society of the United States, Center for Biological Diversity, Natural Resources Defense Council, Inc., and Wildlife Conservation Society intervened as defendants.

The opinion recounts that the court previously dismissed the action for lack of standing. After the plaintiffs filed a Third Amended Complaint that cured the standing deficiencies, the court granted in part and denied in part the defendants’ motions to dismiss and denied without prejudice to renewal the plaintiffs’ earlier summary judgment motion. After discovery, the parties filed the motions decided in this opinion.

First Amendment Standard

The court characterized the display restriction as a regulation of commercial speech, meaning speech related solely to the economic interests of the speaker and audience. Applying the Supreme Court’s Central Hudson test, the court used intermediate scrutiny, a level of review requiring the government to show that the restriction serves a substantial interest and is appropriately fitted to that interest. The court rejected the plaintiffs’ argument for strict scrutiny because binding Second Circuit precedent applies the Central Hudson test to commercial speech restrictions, including content-based restrictions. The court also concluded that a Supreme Court plurality decision did not change that rule.

Constitutionality of the Display Restriction

The parties agreed that the first three Central Hudson requirements were satisfied: the displayed ivory concerned lawful activity, New York had a substantial interest in regulating ivory sales within the state, and the restriction directly advanced that interest. The dispute concerned the fourth requirement—whether the restriction was no more extensive than necessary.

The court held that this requirement was satisfied. It reasoned that barring physical display kept potential buyers from inspecting prohibited ivory in person and reduced the opportunity and temptation for an immediate illegal sale. The court noted that the plaintiffs agreed buyers were unlikely to purchase ivory they could not inspect in person.

The court also found that the restriction did not ban all advertising or marketing of ivory permitted for interstate or international sale. Sellers could use printed advertisements, catalogs, and online materials, and interested buyers could inspect the ivory outside New York. These alternatives supported the court’s conclusion that the restriction was not overly broad.

The court rejected the plaintiffs’ argument that New York needed studies or reports proving the restriction’s effectiveness or showing that no less restrictive alternative existed. The court stated that the record included evidence that the amount of ivory commerce and display in New York had substantially decreased after the State Ivory Law was enacted. It also cited evidence that the number of ivory items displayed for sale in New York City fell from more than 11,000 in 2006 to 224 in 2016, as well as testimony that a plaintiff’s member shipped ivory out of New York because of the law and restriction.

The plaintiffs proposed a “Segregation and Labeling” alternative that would allow prohibited ivory to be displayed separately with a label explaining that it could not be sold in New York. The court found that this approach would be less effective because it would still place the seller, a possible buyer, and prohibited ivory together. The court cited evidence of an undercover purchase of prohibited ivory in New York where the ivory had been kept separately in a glass case marked “Ivory not for sale.”

Finally, the court rejected arguments that the record did not show how the restriction aided law enforcement or why photographs were exempt. The court explained that New York’s interest was preventing illegal ivory sales, not merely inspecting ivory or prosecuting violators. On the record before it, the court concluded that the restriction did not burden substantially more speech than necessary.

Disposition

Judge Schofield denied the plaintiffs’ motion for summary judgment and granted the defendants’ motion for summary judgment. The Clerk of Court was directed to close the case.