White v. City of Sparks
2007 U.S. App. LEXIS 20621, 2007 WL 2429380, 500 F.3d 953 (2007)
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Rule of Law:
An artist’s sale of their original artwork constitutes speech protected under the First Amendment, regardless of whether the artwork conveys an explicit message, because visual art is an inherently expressive medium.
Facts:
- Steven C. White is an itinerant artist who earns a living by setting up an easel on city sidewalks and in parks, selling his paintings to passersby.
- White paints nature scenes and believes his artwork conveys the message that human beings are driving animals into extinction.
- The city of Sparks, Nevada, prohibited the sale of merchandise in its parks and limited sales in its Victorian Square redevelopment area to vendors with permits.
- Sparks made a limited exception for those without vendor permits, allowing the display of merchandise and sale of items pre-approved by city employees as conveying an "express or obvious religious, political, philosophical, or ideological message" under its First Amendment exception policy.
Procedural Posture:
- Steven C. White brought a facial challenge against the City of Sparks' vendor-permitting scheme in federal district court.
- White filed motions for partial summary judgment, seeking a ruling that he could sell his paintings in public spaces free of the city's restrictions.
- The City of Sparks opposed White's motions, arguing that his paintings were not protected by the First Amendment because they did not patently express a specific message.
- The district court granted White’s motions for partial summary judgment, ruling that his paintings expressed a message warranting First Amendment protection and that Sparks’ pre-approval policy constituted an unconstitutional prior restraint.
- The City of Sparks appealed the district court's partial grant of summary judgment to the Ninth Circuit Court of Appeals.
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Issue:
Does the First Amendment protect an artist's sale of original paintings in public forums, even if the paintings do not convey an explicit or obviously discernible religious, political, philosophical, or ideological message?
Opinions:
Majority - Betty B. Fletcher
Yes, the First Amendment protects an artist's sale of original paintings in public forums, even if the paintings do not convey an explicit or obviously discernible message. The court held that visual art is inherently expressive, distinguishing it from merchandise that gains expressive value only when "inextricably intertwined" with pure speech, a standard established in Gaudiya Vaishnava Society v. City and County of San Francisco, which is inapplicable to inherently expressive art. The court emphasized that the Supreme Court has consistently protected various forms of artistic expression, and that a "narrow, succinctly articulable message is not a condition of constitutional protection," citing examples like Jackson Pollock's paintings. Furthermore, the court reiterated that First Amendment protection is not diminished merely because the expression is sold for compensation, and determined that White's paintings, conveying his vision of nature, are not purely commercial speech. The court thus found that the city of Sparks applied an incorrect First Amendment standard in its vendor-permitting policy. The court also rejected Sparks' argument that the district court usurped its authority, affirming the judiciary's power of review, and deemed Sparks' standing argument waived because it was raised for the first time on appeal.
Analysis:
This case significantly clarifies the scope of First Amendment protection for visual artists. It establishes that original artwork is inherently expressive and does not need to convey an explicit or easily discernible message to receive constitutional protection. By distinguishing visual art from other merchandise that may only be protected when tied to a specific message, the Ninth Circuit provided broader safeguards for artistic freedom, preventing municipalities from unduly restricting artists based on subjective interpretations of their work's 'message.' This ruling could empower artists to create and sell their work in public spaces without fear of arbitrary censorship or permitting requirements, provided the regulations are content-neutral time, place, and manner restrictions.
