Part 2 of 2. In honor of Mardi Gras, this blog post replaces our regularly scheduled Tech Tuesday installment.

Flambeaux provide traditional-style lighting for Carnival Parades.

The New Orleans Code of Ordinances, Chapter 34, is simply titled “Carnival, Mardi Gras.” It begins with a list of defined terms familiar to New Orleanians, such as “Flambeaux” and “Tandem Float,” and distinguishes between a “Truck Parade” and a “Float Parade.” Most of the code lays out basic guidelines for safety and spectacle, including rules for parade permitting, float safety, the minimum number of marching bands per parade (7), and so on. However, controversy has erupted this year over Carnival Code Article V, which bans Mardi Gras participants from distributing any “doubloon, trinket or other throw which . . . displays, conveys or communicates any . . . political . . . message.”

"Quick come see, there goes Robert E. Lee"

New Orleans has so many parades, the city has posted permanent signs.

To understand why this is suddenly causing such a stir, know that roughly nine months ago, the city of New Orleans removed high profile Confederate and Reconstruction era monuments from public display. The most famous of these was an iconic statue of General Robert E. Lee, which stood since 1884 atop a massive column in the center of Lee Circle, a key part of the route most Mardi Gras parades must follow. This Carnival season, local vendors have reported selling at least 6,000 strands of beads displaying the words “Forever Lee Circle” with a depiction of the statue. Some New Orleanians believe that Article V’s restriction on political throws is an impermissible suppression of free political speech on public streets, as guaranteed by the First Amendment to the U.S. Constitution. The city appears prepared to argue that Article V meets the high bar of being a valid time, place, and manner restriction under established jurisprudence, which has hinted in the past that blanket, content-neutral suppression of political speech on public streets might be permissible under certain circumstances (See Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980)). If this issue were to be heard in court, it might prove a fascinating extension of existing First Amendment case law, and potentially a star turn for Mardi Gras in the hallowed halls of the Supreme Court.

Krewe of Bacchus rolls down Saint Charles Avenue the Sunday night before Mardi Gras.

Intricate, hand beading is a hallmark of Mardi Gras Indian suits.

A Mardi Gras Indian displays the fruits of his labor.

Federal Law has also come to impact the lives and work of the Mardi Gras Indians. An indispensable part of New Orleans folk life, the roots of the Mardi Gras Indians stem all the way back to the 1700s. The first formal “tribe,” the Creole Wild West, was founded in 1885. Today, Mardi Gras Indians are best known for their elaborate, intricately handcrafted suits. These suits cost thousands of dollars to construct, and are typically worn only a few times after twelve months of design and effort before work begins on the next year’s ensemble. As the new millennium dawned, Mardi Gras Indians were increasingly frustrated that as they spent their personal money, time, and talent to fuel and continually develop this staple tradition, unaffiliated photographers were making money snapping pics and selling prints of the suits. Hoping to protect their intellectual property from this type of unauthorized derivative work, Mardi Gras Indians have started registering their suits as works of sculpture with the United States Copyright Office. It is unclear whether a court would honor these copyrights because of limitations in American jurisprudence for the protection of intellectual property in fashion, yet these registrations and a campaign of public awareness have discouraged photographers from profiting off the work of Mardi Gras Indians without first obtaining permission and sometimes a licensing agreement. New Orleans, land of dreams, where John Locke’s Sweat of the Brow doctrine meets “Iko Iko.”

Further reading...

Today's blog post is part 1 of 2. Tune in tomorrow for more of Mardi Gras and the law.

A law librarian hopes for a throw from an Endymion float.

Around the world, it goes by many names: Fettisdagen, Masopust, Pancake Day. If you’re in the United States, you probably know it as Mardi Gras. Literally “Fat Tuesday,” it is a Christian holiday that falls every year on the 47th day before Easter, with ancient roots as it marks the latest stored meats and animal fats could safely be consumed until the spring harvest. Carnival, or its culmination, is defined by different cultures to encompass different days, and is celebrated on every continent (the first recorded celebration in Antarctica took place in 1908) in endlessly creative ways (from Sambadrome dance spectaculars to epic food fights).

In the United States, approximately 1.4 million people descend on New Orleans for Carnival festivities, which launch on the Twelfth Night of Christmas, January 6, building in a gradual crescendo through Fat Tuesday. The annual celebrations pump an estimated $1 billion into the south Louisiana economy. Where people and money meet, lawyers and politicians will follow, so that even the gratuitous excess of this pre-Lenten revelry is shaped by a web of local ordinances, Louisiana state law, and even the United States Constitution.

Spectators eagerly await the Mystic Krewe of Barkus, New Orleans' premiere all-dog krewe.

The most obvious legal issues are criminal. New Orleans Police Department has its hands full between inspecting floats, escorting parades, and containing the masses. While that inevitably means some less-than-legal behaviors might go unchecked, testing the patience of the police can easily land you in Orleans Parish Prison, as the cops focus on stopping problems before they start. Unlucky arrestees will languish in O.P.P. until the overburdened courts can process them back out, sometimes only after the bells of Saint Louis Cathedral solemnly herald Ash Wednesday. Popular ways to get arrested include fighting, public urination, and drinking until you fall asleep on the sidewalk.

Liability is also a major concern. Chapter 34 of the New Orleans Code of Ordinances, “Carnival, Mardi Gras,” requires krewes to carry liability insurance for issues relating to their floats and other aspects of the parade before a permit will be issued. But who is liable for the conduct of the individuals riding on the floats, drunkenly hurling trinkets at the roaring crowd? The largest parade, staged by the Super-Krewe of Endymion, has over 3,000 riders, which can make behavior difficult to police even with vigilant Float Captains empowered to enforce rules of conduct on the route. It is, then, no surprise that through the Revised Statutes, the Louisiana legislature has limited krewe liability beyond “deliberate and wanton act or gross negligence of the krewe or organization.” Unlimited liability would render such massive parades financially impossible. In the same statute, the state asserts that parade attendees assume “the risk of being struck by any missile whatsoever which has been traditionally thrown, tossed, or hurled by members of the krewe.” Which is to say, if you are watching a parade and get hit hard in the face with a bag of beads, forget about litigating and instead shout “Laissez les bon temps rouler!”

Further reading on Mardi Gras in New Orleans:

Ex Libris Juris - HCLL Blog