Manhattan’s antique district is filled with galleries where customers can physically inspect valuable antiques before buying them. But shops cannot display all the merchandise they are allowed to sell. Federal law allows sales of antiques containing ivory that are at least 100 years old, but if antiques contain more than 20% ivory, state law bans their sale to New Yorkers and prohibits their display in New York dealers’ stores. Dealers may only show photos or catalog listings of that merchandise to in-store visitors, and only if a “not for sale in New York” disclaimer is included. The dealers sued for the right to sell the items as allowed under federal law, and to display the actual items with that same disclaimer, on First Amendment grounds, but were rejected by a federal trial court. Because government cannot ban displays of items that are legal to sell, two trade associations are fighting back on behalf of their members.
The Art and Antique Dealers League of America, Inc. is the oldest and principal antiques and fine arts organization in the United States. Formed in 1926 to connect and support dealers and collectors, the league today has more than 110 members representing over 60 different fields of expertise.
The National Antique and Art Dealers Association of America, Inc. is a selective, invitation-only non-profit trade organization of the country’s leading dealers. Through many years of study and experience, its members are highly regarded for their integrity and fairness in all transactions.
Members of both organizations have galleries and shops in New York, many in Manhattan’s antique district. As with most valuable items, in-person viewing is an important aspect of antique sales, especially antiques containing ivory.
Recognizing that there is no evidence of a connection between antiques and modern elephant poaching, federal law allows the sale of older antiques containing ivory, as well as newer items containing a small amount of ivory.
Specifically, the rules allow interstate and international commerce in “antique articles” that are at least 100 years old, as well as non-antique artwork containing “de minimis” amounts of ivory that is at least 45 years old and has been in the U.S. for at least 30 years.
These limitations didn’t go far enough for lawmakers in New York. Recognizing it cannot ban what federal law authorizes, the state passed an ivory law in 2014 that prohibits display and sale of antiques with more than 20% ivory—even though New York acknowledges that they may be sold to buyers in other states and internationally.
The New York law allows dealers to show store visitors the disfavored items only in photographs and catalogs, and only if the items are labeled as “not for sale in New York.”
Virtually no one is willing to purchase valuable antiques without first physically inspecting them. Saddled with this government restraint on their speech and their livelihoods, the dealers sued for the right to sell the items consistent with federal law, and to be able to display items with the same “not for sale in New York” disclaimer, but they were rejected by a federal trial court.
The First Amendment prohibits government from permitting an activity but banning speech about that activity. By restricting speech related to certain antique sales that are allowed under federal law, New York’s display restriction provision is unconstitutional.
Represented free of charge by PLF, both dealer organizations are appealing the lower court’s ruling to the U.S. Second Circuit Court of Appeals.