New York's Ivory Ban to Face Challenge on Constitutional Grounds

Porter Wells - Bloomberg Law

Antique dealers in New York got the green light Aug. 14 to move forward with their lawsuit alleging New York's ivory ban unconstitutionally restricts commercial speech.

The 2014 New York law makes it illegal to sell, purchase, trade, barter, or otherwise distribute elephant ivory and rhinoceros horn within state lines. A dealer that trades in ivory in New York without a state-issued permit risks being charged with a felony and significant civil penalties. Even with a permit, stores can't physically display ivory products that aren't authorized for in-state sales.

A comprehensive national ban on commercial ivory sales in the U.S. went into effect in 2016. But there's a carve-out in the federal sphere for bona fide antiques, which is where the antiques dealers' commercial interests cross paths with New York's interest in combating illegally-trafficked ivory.

Though a New York-based antiques dealer can't sell an ivory antique to a fellow New Yorker, it's still legal under federal law for that dealer to market its ivory antiques to out-of-state buyers, Judge Lorna G. Schofield said for the court.

The dealers made plausible allegations that the display restriction in the New York law may be unconstitutional as it relates to restricting their ability to conduct lawful sales, she said. She denied the state's motion to dismiss the First Amendment claim, but didn't grant the dealers' motion for summary judgment.

Whether the display restriction directly advances the state's interest in regulating ivory within its borders needs a deeper inquiry, she said.

New York succeeded in dismissing the dealers' claims that the state law was preempted by federal law. New York's ivory ban only seeks to regulate in-state ivory transfers and federal law has left gaps for states to issue their own regulations in the field of endangered animal products, Schofield said in dismissing those claims.

McLaughlin & Stern LLP represent the antiques dealers. The New York Attorney General's office represents the state's Department of Environmental Conservation.

The case is The Art & Antique Dealers League of Am., Inc. v. Seggos, S.D.N.Y., No. 18-cv-02504, 8/14/19.

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