Artist Has Constitutional Right to Sell Works on Sidewalk

Thursday, August 30, 2007

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Artist Has Constitutional Right to Sell Works on Sidewalk—Court

By Kenneth Ofgang, Staff Writer

The First Amendment protects an artist’s right to sell his work in public places, even if the content is not overtly political, ideological, or philosophical, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel affirmed a district judge’s ruling that a city policy in Sparks, Nev—which prohibits any sale of merchandise in parks and requires vendors in the city’s Victorian Square area to obtain a permit or to convince city officials, in advance, that the material falls within a “First Amendment exception” to the permit requirement—is an unconstitutional prior restraint on free speech.

The exception, city lawyers explained, is based on Gaudiya Vaishnava Society v. City and County of San Francisco, 952 F.2d 1059 (9th Cir. 1990), in which the court held “the sale of merchandise which carries or constitutes a political, religious, philosophical or ideological message” was protected by the First Amendment.

Itinerant artist Steven C. White sued the city, seeking a declaration that he had a First Amendment right to sell his paintings in Victorian Square and in the city parks. White said his paintings conveyed a number of messages, including the belief that human beings are driving their “spiritual brothers and sisters,” the animals, into extinction.

Partial Summary Judgment

U.S. District Judge David Hagen of the District of Nevada granted partial summary judgment, holding that White’s paintings expressed a message protected by the First Amendment and that the city could not condition sale of his original works on prior approval in the absence of objective criteria for accepting or rejecting a particular work.

Senior Judge Betty B. Fletcher agreed with the district judge, rejecting the city’s argument that sale of paintings in a public forum is protected by the First Amendment only if the paintings convey an explicit or obvious message that fits into one of the Gaudiya categories.

“[V]isual art is inherently expressive,” Fletcher explained, unlike the clothing, jewelry, and stuffed animals sold for charitable fundraising purposes by the plaintiff in Gaudiya.

‘Sense of Form’

Citing U.S. Supreme Court decisions, the judge elaborated:

“In painting, an artist conveys his sense of form, topic, and perspective. A painting may express a clear social position, as with Picasso’s condemnation of the horrors of war in Guernica, or may express the artist’s vision of movement and color, as with ‘the unquestionably shielded painting of Jackson Pollock.’... Any artist’s original painting holds potential to ‘affect public attitudes’...by spurring thoughtful reflection in and discussion among its viewers. So long as it is an artist’s self-expression, a painting will be protected under the First Amendment, because it expresses the artist’s perspective.”

In a footnote, the judge emphasized that the court was not ruling one way or the other on the question of whether the sale of copied or mass-produced art carries the same protection as the sale of original works.

Judge Richard R. Clifton concurred in the opinion, as did District Judge Edward F. Shea of the Eastern District of Washington, sitting by designation.

The case is White v. City of Sparks, 05-15582.