No license needed to sell art in parks of Sparks, Nev.

Friday, August 31, 2007

RENO, Nev. — Artists can sell their work without a license at Sparks city parks and on sidewalks under a ruling by a federal appeals court.

A three-judge panel of the 9th U.S. Circuit Court of Appeals has upheld a lower court ruling that favored artist Steven White.

“We're ecstatic. We're jumping up and down,” White's lawyer, Terri Keyser-Cooper, said after the opinion was released on Aug. 29. “The ruling means that Mr. White and any other artist may sell his own personally created art in the parks of Sparks and in Victorian Square without a license or permit.”

According to his lawsuit filed in 2003, White is a traveling artist who paints landscapes that have “a Native American theme, incorporating his philosophy about the environment, the spirituality of the universe and the need to protect animals.”

He had stopped in Nevada in 2002 and wanted to sell paintings to earn enough money to visit his sick mother in San Francisco. But whenever he tried to set up an easel in Sparks, he was arrested, the suit said.

Under the city's ordinance, selling goods in parks or Victorian Square is prohibited without a permit.

The city made First Amendment exceptions for items that were “pre-approved” by city employees if they were determined “to convey an express or obvious religious, political, philosophical or ideological message.”

Thomas Riley, senior assistant city attorney for Sparks, said he was surprised by the decision in White v. City of Sparks, especially after receiving a strong impression during oral arguments in favor of the city's position.

“The oral argument was diametrically opposed to what came out in the opinion today,” Riley said. “I'm shocked at the fact that the case turned around from the oral argument.”

Riley said the city was “exploring our options at this point,” and might ask for a review of the decision by the full appeals court or take the case to the U.S. Supreme Court.

Keyser-Cooper argued the “pre-approval” requirement was a prior restraint of White's constitutional rights and said his paintings “are inherently personal expression and protected by the First Amendment.”

U.S. District Judge David Hagen agreed with the argument in 2005, and Sparks appealed.

A federal judge made a similar ruling against Reno in 2003 and approved a $47,500 settlement for White and sculptor Ben Klinefelter.

The 9th Circuit panel said that the U.S. Supreme Court “has been clear that the arts and entertainment constitute protected forms of expression under the First Amendment.”

“Against this backdrop, it is clear that White's self-expression through painting constitutes expression protected by the First Amendment,” the court ruled. “The city's argument that the message conveyed must be either explicit or implicit but obvious in order to merit protection must fail.”

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