Justices can strike a blow for art by accepting junked-car case

Monday, August 23, 2010

Editor’s note: On Oct. 4, the U.S. Supreme Court turned away Michael Kleinman’s appeal.

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The U.S. Supreme Court has a chance to enhance protection for art if it
agrees to hear Kleinman
v. City of San Marcos,
a case involving a junked vehicle transformed
into a cactus planter.

According to the Court’s site, the petitions in the case were distributed on
Aug. 18 for the justices’ Sept. 27 conference, during which they may decide
whether to take the case.

Michael Kleinman, the owner of several Planet K stores in the San Antonio and
Austin areas, opened a store in San Marcos, Texas. The store sells “grownup
gifts for kids of all ages.” Kleinman usually celebrates the opening of a new
store with a “car bash.” This consists of a charity event in which the public
pays to help smash a car.

In November 2007, Kleinsman had an Oldsmobile 88 smashed to commemorate the
store’s opening, added cactuses to the car and then commissioned two local
artists, Scott Wade and John Furly Travis, to paint the car. Wade painted local
San Marcos scenes, while Wade painted animals, a peace sign, and the slogan
“Make Love Not War.” The product,
Kleinman contends, is art.

However, San Marcos city officials objected. They ordered Kleinman to remove
the junked vehicle from his store property. The car was visible from a public
right-of-way in violation of a city ordinance declaring such visible wrecks
public nuisances.

Kleinman filed a lawsuit, contending that applying the junked-car ordinance
violated his First Amendment rights to create and display art. The suit was
originally filed in state court, but the city had it removed to federal court,
at which point Wade and Travis joined the suit. The lower federal courts sided
with the city. In February 2010, a three-judge panel of the 5th U.S. Circuit
Court of Appeals ruled in Kleinman v. City
of San Marcos
that “the ordinance is reasonably tailored to achieve the
City’s legitimate interests with only incidental restriction on protected
expression.” The 5th Circuit reasoned that Kleinman could still display the
vehicle “behind a fence, indoors or in a garage enclosure.”

But the 5th Circuit also examined language in the Supreme Court’s 1995
decision Hurley
v. Irish American Gay, Lesbian & Bisexual Group of Boston,
dealt with the application of the First Amendment to a St. Patrick's Day parade.
In Hurley, the Court said the First Amendment often protects expression
that doesn’t convey a particularized message, such as “the unquestionably
shielded painting of Jackson Pollock, music of Arnold Schonberg or Jabberwocky
verse of Lewis Carroll.”

The 5th Circuit sidestepped this speech-protective passage in Hurley,
writing that the Supreme Court’s decision “refers solely to great works of

In their petition to
the Supreme Court, Kleinman and the two artists seize upon this broad statement
by the 5th Circuit as a reason that the high court should take the case. “The
First Amendment’s protection of artistic expression is not limited to ‘great
works of art’ by famous artists,” the brief reads. “A city may not simply ban
the publicly visible display, particularly on private property, of an entire
category of art.”

In its amicus
the National Coalition Against Censorship argues that “if this Court
allows Kleinman to stand, municipal governments in Texas, Mississippi and
Louisiana are free to completely prohibit visual artists from publically [sic]
displaying their works from private property if such works are not judged to be
‘great art.’”

The case is intriguing not only because the 5th Circuit took a crabbed view
of artistic expression, but also because it had an interesting take on whether
the junked-vehicle ordinance left Kleinman with alternative ways to communicate
his message.

The 5th Circuit approved the complete ban on the public display of the
vehicle because it said Kleinman could place it behind a fence and erect a sign
or display a poster of the vehicle to the public.

This is strange reasoning, because there is no suitable alternative to
displaying your actual piece of artwork. Government officials shouldn’t be able
to ban pieces of art on private property from direct public viewing.

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