Art & Protected Free Speech: The Legal Dilemma Facing Cities

Artists and musicians have the Constitutionally-protected free speech right to perform and sell their work in public spaces

America: If you care about Free Speech, the Arts and Artists in our Society, and if you care about ending the culture of violence we find our country slipping into, please read this information and pass it on to every American Citizen you know.
— Thank You, from your Artistic Children

By Steven C. White

art in the park, free speechCity Governments find themselves trying to sort out and deal with three forms of expression, taking place on public forums in their Municipality.

1. Commercial Vendors/Peddlers/Crafters/Tradesmen/Artisans who wish to sell merchandise that has a primary purpose of being useful/functional/utilitarian and or having some intrinsic value beyond any message the merchandise may convey to the public. These Citizens would be engaged in “commercial speech” which, though covered to some degree, does not reach the FULL protection of the First Amendment. Commercial speech can be regulated by Government with licensing and even a complete ban from public parks and other traditional public forums of the City.

2. First Amendment Protected Speech by Non-Profit Religious and Political Groups who , by the nature of being fully protected by the 1st Amendment, are allowed to sell their expressive merchandise in public parks and other traditional public forums of the City without license requirements. Their Full Free Speech Protection by the First Amendment is derived from the fact that the merchandise they sell (even though useful at times), is inextricably intertwined with and inseparable from conveying to the public a “particular political, philosophical, ideological, or religious message”. This was settled by the 9th Cirucuit Court of Appeals for the 9th Circuit in Gaudiya Vaishnava Society, Green Peace vs City and County of San Francisco (1990).

3. First Amendment Protected Speech by Artistic American Citizens who engage in Speech/Self-Expression through the Fine Arts, as listed by the 9th Circuit Court in White vs City of Sparks, “in siding with our sister courts”; paintings, drawings, sculpture, photography, prints, engravings, stained glass windows as “art for art’s sake”, music, dance, theater, and films. Artistic Self-Expression by an original Artist is NOT required to meet the “particularized message” standards that are applied to Non-Profit Religious and Political groups because the Supreme Court has held that a work of art is specifically created by an “Artists” to convey some message to those who view it. The U.S. District Court for Nevada points out in White vs Sparks that considering the fact that the U.S. Supreme Court has held the abstract paintings of Jackson Pollock to be “unquestionably” entitled to First Amendment protection, it is hard to see ANY work of Art failing to pass this test. En Banc, the entire 9th Circuit Court of Appeals agree that: “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.”

It is crucial that City Governments and all Public Officials who deal with enforcing commercial code restrictions on their fellow Citizens that they fully understand these three distinctly different categories of Speech. It is even more important that our elected public servants fully understand the implications of restricting American Citizen’s Sacred right to Freedom of Speech through protected forms of Artistic Self-Expression in public parks and other traditional public forums.

While Government is allowed to enforce numerous restrictions, licensing and sales tax requirements upon Americans engaged in Commercial Speech, Government is MOST limited in the time, place, and manner restrictions they can place upon Americans First Amendment right to Freedom of Speech on traditional public forums such as public parks. Foremost is that ANY restriction that they place on a group of Americans who use “Visual Art” to express themselves MUST be equally applied to ALL Americans using other forms of protected speech to express themselves on public forums. This free speech right is guaranteed to all Americans under the Equal Protection Clause of the 14th Amendment.

While Government can enforce license requirements upon Americans who engage in “Commercial Speech” activities, such as the selling of “wares,” Government is NEVER allowed to enforce a license requirement upon an American Citizen as a condition of allowing us to engage in First Amendment protected “Speech” of Artistic Self-Expression on traditional public forums, such as public parks.

While Government is allowed to enforce licenses and other regulatory restriction on “pre-planned” rallies, parades, and large gatherings of Americans as part of a Free Speech Activity in the parks — because the public’s safety may be at risk — Government has NEVER been allowed to license an individual American Citizen’s First Amendment Right to speak to others on public forums. The Right to Peaceful Public Assembly is also protected by the First Amendment.

Whether through Visual Art, Performing Art, Spoken Words, or Written Words, all of these are forms of human speech/self-expression that have been held by our Federal Courts to be fully protected by the First Amendment since the founding of our Country.

The SALE of First Amendment Protected Expression is also protected by the First Amendment. This is the part that seems to just fly in the face of reality and all the years you have been seeing “Artists” selling alongside of commercial vendors at all the City sanctioned special events you have gone to over the past 25-30 years.

Yet this part of the LAW is the part that is MOST “Well Settled” by all of the Federal Court, including the Supreme Court. Failure to understand this part of the “Well Settled” LAW has resulted in the complete elimination of all First Amendment protected Self-Expression through Visual Art in all of our public parks across America. Failure to understand this “Well Settled” part of First Amendment Law has literally robbed generations of our children of Art in our Parks.

The fact is that MONEY has absolutely NO effect upon your First Amendment Rights!!! Quoting the U.S. Supreme Court: “It is Well Settled that a speakers rights are not lost merely because they are paid to speak; a speaker is no less a speaker because he or she is paid to speak.” Quoting the 9th Circuit Court: “[T]he degree of First Amendment protection is not diminished merely because the [protected expression] is sold rather than given away…White’s paintings, which communicate his vision of the sanctity of nature, do more than propose a commercial transaction and therefore are not commercial speech.”

You should find it interesting that City Governments will almost always have exemptions from licensing and sales tax collection in their municipal codes for Non-Profit Religious and Political Groups who sell their First Amendment protected merchandise, that is inextricably intertwined with a particular message! However if asked WHY these groups are exempt, most City Officials will tell you that “it’s because they are Non-profit.” WRONG! The reason why Non-profit Religious and Political Groups that sell merchandise are exempt from sales tax collection and licenses is because they are Protected by the First Amendment — whether they sell their merchandise for profit or give it away for free makes no difference what so ever, as far as their rights are concerned.

An interesting point to make is that when these Governments exempt by code all licenses and sales tax requirements and restrictions on Non-profit Religious and Political Groups that sell their 1st Amendment protected merchandise, yet do NOT afford American Citizens engaged in First Amendment protected Artistic Self-Expression those same exemptions in their codes, that government is violating American Citizen’s 14th Amendment Right to Equal Protection Under Law.

And yet these same government officials lack the proper information or just can’t fathom that fact that American Citizens who engage in the forms of Artistic Self-Expression listed by the 9th Circuit Court in White vs Sparks as fully protected by the First Amendment also have the First Amendment Right to ask for and receive compensation and or SELL their self-created visual Art for profit without any license or sales tax requirements by our government(s).

Government CAN NOT selectively enforce licenses, sales taxes, fees, and numerous other restrictions on our First Amendment Right to FREEDOM of SPEECH merely because we express ourselves through the Visual Arts. In Reno and other Cities they have been not only inflicting these illegal restrictions on all American Citizen’s First Amendment Right to Free Speech, they have been threatening us with citations, fines, arrest, imprisonment, and confiscation of our property FOR simply engaging in our Birth Right as American Citizens to express ourselves through the Fine Arts in our public parks.

The result of years of lack of information and WRONG information on these important matters has resulted in the Fine Arts and Artists being diminished in our society and Artistic American Citizens have been run out of all of our public parks for decades. All because American Citizens and Government Officials do not understand these basic principles of First Amendment Law.

I personally have spent 10 years of my life fighting in the Federal Courts for all Americans, in order to get clear rulings from the Federal Courts on these matters of First Amendment Rights that ALL American Citizens should be concerned about. We not have those rulings and there are NO more excuses for these horrible policies that are destroying the fine Arts in our Society and Robbing our Children of their Birth Right and God Given Human Right that, thank God, is protected by the First Amendment to our United States Constitution, so that our local Politicians can’t take our Rights away.

It leads me to ask: How many more generations of our Children will be denied the ability to participate in the Arts? How long will we all stand by and let local Government Officials destroy the Arts in our communities, while our society continues to degrade into a culture of violence? How long will American Citizens allow our local Government Officials rob us of our Constitutional right to be an Artist in a public park?

We have reached an all-time LOW in America today when our elected public servants fully understand that they Can NOT license our 2nd Amendment right to own a GUN — used to kill — but these same elected public servants think they can license American Citizen’s rights, under the First Amendment, to be an Artist in a public park, threaten us with fines, citation, arrest, imprisonment and confiscation of our property — all for being an Artist in the Public Parks.

Every American should really stop and do some serious thinking about this matter. In the City of Reno it has been illegal to engage in First Amendment protected Artistic Self-Expression for over a decade. An entire generation of our Children have been robbed by ignorance on behalf of our elected public servants who are receiving incompetent legal council by these City [so called] Attorneys.

Read another article by Steven C. White: Delivering the Gift of Art Back to America.

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