How a traveling painter took his case for artists’ free speech rights all the way to the Supreme Court — and won
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My name is Steven C. White, and I am an Artist who has painted my way all over America for the past 40-plus years. In 1998, I was in Littleton Colorado doing an art show, and I challenged the Foothill Park and Recreation on their restrictive policies that allowed Artist use of the parks only during their permitted special event festivals. They were charging Artists $275 to participate in their festival and denying us equal access at other times. This pissed me off!
So I called them up and told them that I was going down to their “Clement Park” and putting up a modest display of my paintings, and I was going to paint, display and even sell my Art in their public park. I let them know that if they hassled me, I would take them into federal court and sue them for violating my First and Fourteenth Amendment rights. They quickly backed down and told me that I could show and sell in their parks.
So I took that opportunity to invite other Artists to come join me, and I started a small Free Community Art Show along the walking path at Clement Park. Artists could paint, display, perform, and even sell or receive compensation for their art, at our free shows in the park.
We had a great summer with senior citizens and children joining us in our evening art shows. I built a small, carpeted 4 foot by 4 foot stage, with a sign on the front saying “The Poet Writers Stage.” Every evening, I would bring the stage down to the park and plop it on the grass, and the high school students and others would take turns reading their poetry from that stage. We had a hat up front where the public could make contributions to these aspiring poets.
One evening a high school English teacher happened to come to the park and enjoyed the Poetry. He came over to me, introduced himself and while shaking my hand profusely, he exclaimed that I must be a “miracle worker”! How did I get high school students to read poetry in the parks?
I explained that since the founding of our country, the citizens of America have had a constitutional right to use the quintessential public forum of our public parks to peacefully assemble for the purpose of engaging in Artistic Self Expression. The Arts are the oldest and most powerful form of human communication and are a form of self expression that rises to the FULL level of protection under the First Amendment. I also told him that I had to threaten the Park and Recreation with a federal law suit to make them stop their illegal policies of the past, which had run every Artist out of every park in that community for decades. We held our little free Art Show in Clement Park every evening all summer long and the public loved it.
In the spring of 1999, I was at the grocery store when I was approached by a gentleman who happened to be a Boy Scout Master and knew me from the Art Show. He asked me if I could come speak to his Boy Scouts about their First Amendment rights to be Artists in the parks. So it was that I found myself in a local church basement with about 40 bright smiling Boy Scouts sitting on the floor before me as I gave my dissertation.
The next morning I was down at Clement Park early to set up my easel and do some painting. That was the morning of the horrible tragedy at Columbine High School. Columbine is located at the south east corner of Clement Park. The Boy Scouts that I spoke to the evening before attended Columbine and walked right into that horror on that fateful day. I heard the shots, saw screaming children dragging one of their friends over the grassy knoll across the park and I took off running. That is how I became a witness to that terrible part of our country’s history.
A couple of days after the shooting a young man spoke to me in tears. What he said to me changed my life forever. He explained that the boy shooters, Eric and Dillon, were both good artists. They had gotten into it with the jocks and that led to them forming the “Trench Coat Mafia.” It was what the young man told me next that put me on my life’s quest. He said: “Just think Mr. White, if Eric and Dillon had the chance to get that negative S#%T out of them in a positive way through their art, maybe — just maybe — the shooting would never would have happened.”
From that point on, I have been on a mission to deliver the gift of Art back to the children of our country, as a gift from the children who suffered and died at Columbine — so that something good and beautiful could come from that tragedy, and “maybe, just maybe” it will never happen again.
There wasn’t much I could do in that environment after the shooting, so I packed up and headed for Utah, where the Olympics were coming in a few years. I figured I could reach more people with my message. I was a member of a local Art Guild out there and had done many shows over the years in Utah. I got behind a man named Rocky Anderson who was running for mayor of Salt Lake City. Rocky was a Democrat, a Catholic, and an ACLU supporting attorney. Be darned, he won and became mayor of Salt Lake City.
I went to Rocky and told him of my story at Columbine, showed him Federal Court rulings in support of Artists Rights, and we began to work together to open Salt Lake City to Artists. With that experience I learned a lot about the workings of city governments and how to challenge illegal policies. Because the Olympics were coming, Salt Lake City needed the Arts and local Artists on sidewalks and plazas to revitalize their decaying downtown area. After all, the entire world was coming to Salt Lake City and certainly Artists could be found openly displaying and selling their Art in cities all over the world…why not Salt Lake City?
I went about organizing Free Community Art Shows in the parks and Rocky backed me up and kept the enforcement away. If we had a problem, we called Rocky and he covered us. Rocky and I managed to open opportunities for Artists to be able to perform, display and sell their Art on the sidewalks, plazas and in the public parks of Salt Lake City, giving Artists back their Constitutional Rights. Artists helped to save the Olympics for America and Salt Lake City and you will find them there today.
I then headed to Carson City, Nevada, to challenge that state capital on Artist’s Rights. They told us we could display, but not sell. So we went down and had a show. When one of the park rangers admired our Art we told the ranger to pick out what ever he wanted, take it home and send us a check. He did! Everyone in city government began to see how stupid the restrictions were. But that was just the beginning of an amazing journey I was about to undertake in my quest to deliver the Arts back to the kids of America.
While set up in a park, a lady told my buddy, Ben, a sculptor, and I about a couple of civil rights attorneys over in Reno. With nothing to lose, we contacted them.
It turns out that there are very few civil rights attorneys that know about Artists First Amendment rights. The other larger problem was that there was very little legal precedent to base a law suit against these city administrative policies. This made it even more difficult to obtain an attorney who would represent Ben and I on contingency, in this case.
We met with the two lady attorneys and they offered to represent us in federal court. Amazingly, it just so happened that one of the attorneys also had a Masters Degree in the Arts. I might add that these two wonderful and brilliant attorneys took these law suits on, out of their own pockets and fought for all Artists rights for over six years before they were ever paid. We all owe them much gratitude for the work they did.
Yet we understood that the only way we would ever free Artists from abusive and illegal restrictions to our constitutional and human right to reach the public with our Artistic Self Expression on public forums was through federal lawsuits. Winning rulings from the highest courts, clearly defining the Constitutional Rights of all Citizens to engage in Artistic Self Expression in our public parks and in other public forums, was what we needed to do.
Surprisingly, in the 236 years of our country’s history, the federal courts had not been asked these questions of constitutional law. Because our rights as Artists were not clearly defined, cities and towns across America used “administrative law and policies” to throw Artistic Citizens under the municipal codes, written to restrict the sales by “commercial” vendors selling “wares” and/or mis-applying codes that ban “panhandlers and peddlers”! After all, Artists are forced to set up next to “commercial vendors” at all the city sanctioned festivals…so I guess they figure an “Artist” is no different from a hot dog or taco vendor and our Art is nothing more than “wares.”
You need to understand that the word “Artist” does not exist in most city municipal codes. Cities have turned Artists into criminals for using the public parks for one of their intended purposes…peaceful public assembly to engage in Freedom of Speech through Artistic Self Expression. They did this not according to any laws that exist in their municipal codes, but simply by adopting an “administrative policy” that enforcement will apply “commercial codes” to Artists, labeling Artists as “commercial vendors” and rousting us from the parks across America.
This is how the Arts have been nearly destroyed in America over the past 30-plus years. I would contend that, just as in sports, public support for the Arts will only come from public participation in and public interaction with Artists and the Arts openly in our communities.
The Presidents Commission on the Arts (under the Bush Administration) stated: “WHEREAS, The President’s Committee on the Arts and the Humanities has found that participation in the arts and humanities unlocks the human potential for creativity and supports a thriving culture that is at the core of a vital society.” We can only imagine what damage has been done as a result of these horrible “administrative policies” that commercialized Artists and kicked us off of public forums everywhere. And — as we showed in our court battles — those policies are all illegal.
In most city municipal codes you will also find, under “exemptions from licenses,” a code that exempts sales of merchandise that is otherwise protected under State and or Federal Constitutional Laws. “Administrative policies” should be to place Artists under that exemption for constitutional reasons. “Administrative law” is not actually law, it is simply the cities elected administrations’ interpretation of the laws/codes/ordinances, and how they are to be applied.
Our rights as Artists are being destroyed across America and children are being robbed of Art in their lives, all because of a general ignorance of who an “Artist” is, what “Art” is, and what the constitutional protections offered to “Artists” selling their own “Art” are.
So, we initially headed for federal court with a law suit against the City of Reno, Nevada. That city was forcing Artists to submit their Art to a standard-less jury review, as a precondition of being judged worthy getting a license to share our Artistic Self Expression with the public in traditional public forums. We sued, they quickly folded, and Ben and I won that case with a ruling from the Federal District Court for Nevada (2003), holding that it was unconstitutional to jury one Artist’s self expression vs another Artist’s self expression. It was a good litigation to get our feet wet, but I wanted more!
I wanted some questions answered clearly by the 9th Circuit Court and the U.S. Supreme Court. So I filed suit in Federal Court against the City of Sparks, Nevada, for violating my First Amendment Rights by not allowing me to to perform, display and sell my Art in the public parks and at “Victorian Square.”
We won in the U.S. District Court, and Sparks appealed to the 9th Circuit Court, where a three-judge panel ruled in our favor again, expanding the lower court’s ruling. Sparks then appealed to the entire 9th Circuit Court, and they all were in agreement with the ruling. Then Sparks filed for an appeal to the U.S. Supreme Court, and upon review, the high court rejected the City’s Appeal. (Thanks to Sparks fighting for what they believed — and I might add what most city governments wrongfully believe — we were able to win back the First Amendment Rights of all citizens to express ourselves Artistically in our public parks without fear of citations, fines or arrest.)
Here are the fundamental questions that we asked of the Courts in White vs Sparks, and the answers we got in the ruling by the Federal Courts:
A. Define: What is First Amendment protected “ART” and why is it protected? (Note: So everyone can understand.)
The 9th Circuit response: “In holding that the First Amendment protects an artist’s original paintings, we join two of our sister circuits.” (6th Cir.2003) (holding that “[t]he protection of the First Amendment includes music, pictures, films, photographs, paintings, drawings, engravings, prints, and sculptures”); (2d Cir.1996) (“[P]aintings, photographs, prints and sculptures always communicate some idea or concept to those who view it, and as such are entitled to full First Amendment protection.”); see also (7th Cir.1985) (holding that stained glass windows, as “art for art’s sake,” were protected under the First Amendment).
B. Define: Who is a First Amendment protected “Original Artist”? (Note: So everyone can understand.)
The 9th Circuit response: “Against this backdrop, it is clear that White’s self-expression through painting constitutes expression protected by the First Amendment.” “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.’” (Quoting a U.S. Supreme Court decision of 1995.) “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.” (Note: Of course, these statements about my paintings would also apply to all forms of Artistic Self Expression listed by the 9th, 7th, 6th, and 2nd Circuit Courts.)
C. Does an “Artist” have a First Amendment Right to sell their Art on traditional public forums such as public parks?
The 9th Circuit Response: “Nor are we convinced by the city’s argument that White’s sale of his paintings removes them from the ambit of protected expression.” “[T]he degree of First Amendment protection is not diminished merely because the [protected expression] is sold rather than given away.” quoting the Supreme Court; “It is well settled that a speaker’s rights are not lost merely because compensation is received; a speaker is no less a speaker because he or she is paid to speak.”); ”Finally, even purely commercial speech is entitled to significant First Amendment protection.” ”Purely commercial speech is speech which does ‘no more than propose a commercial transaction.’ ” “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.”
D. Must an “Artist” convey a particular political, ideological, philosophical or religious message to gain the full protection of the First Amendment?
The 9th Circuits response: “The city’s argument that the message conveyed must be either explicit or implicit but obvious in order to merit protection must fail.” “As the Court has explained, ‘a narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a particularized message would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schöenberg, or Jabberwocky verse of Lewis Carroll.’”
E. Does an “Artist” lose their full protection under the First Amendment if or when they sell their Art for profit? (In many cities and towns, Artists are allowed to perform and display their Artistic Self Expression publicly without a license, they simply can not sell it.)
The 9th Circuit has clearly stated that they agree with their sister court ruling in Bery vs New York, 2nd. Circuit, (1996). This is what the 2nd Circuit had to say to New York’s arguments about displaying but not selling on public forums: “The City argues that appellants’ “expression” allegedly impinged by the Regulation is not in fact their art, but their peddling of the art.” “It argues that the sale of art is conduct, and in order to be constitutionally protected, the sale of protected material must be “inseparably intertwined with a ‘particularized message.’ ” ” The City further argues that appellants [Artists] are free to display their artwork publicly without a license, they simply cannot sell it.”
The 2nd Circuits response: “These arguments must fail.” “The sale of protected materials is also protected.” Quoting the Supreme Court: “It is well settled that a speaker’s rights are not lost merely because compensation is received; a speaker is no less a speaker because he or she is paid to speak.” Quote 2nd Circuit: “As in the present case, without the money, the plaintiffs would not have engaged in the protected expressive activity. “ “Furthermore, the street marketing is in fact a part of the message of appellants’ art.” “As they note in their submissions to the court, they believe that art should be available to the public.” “Anyone, not just the wealthy, should be able to view it and to buy it.” “Artists are part of the ‘real’ world; they struggle to make a living and interact with their environments.” “The sale of art in public places conveys these messages.”
F. Is an “Artist” a “commercial vendor” when they sell their Artistic Self Expression for profit?
The 9th Circuit response: “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.” “In sum, we agree with the district court that the city applied the wrong First Amendment standard in its First Amendment exception to its vendor-permitting policy and hold that an artist’s sale of his original paintings is entitled to First Amendment protection.”
G. Can Anyone, even those who are not the creator of the Art, display and sell Art under First Amendment Protection?
The 9th Circuit response: “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.” As will original Artists working in the mediums listed by the 9th Circuit in agreement with their sister courts, the 2nd, 6th, and 7th Ciruit.
I think it is important to point out the reason that the Arts, as defined by these Federal Court rulings, reach the full level of protection by the First Amendment, while commercial merchandise does not. The fine Arts all have one thing in common: They are all purely expressive of the original Artist’s message(s), and have no intrinsic value beyond the message they convey. This sets the Fine Arts apart from typically commercial merchandise sold by commercial vendors of crafts, jewelry or food. They have a dual purpose, both aesthetic and functional, and/or utilitarian. Because commercial merchandise is not purely expressive, it does not reach the full protection by the First Amendment, and can be regulated by restrictive commercial codes while Artists can NOT!
Remember the kids? Our kids can’t go to City Hall and get a license to be an Artist in the parks, because they are under-age! So when we allow local Governments to apply commercial codes to Artists with their “administrative policies,” we are in fact allowing them to destroy any chance of kids participating in the Arts in public parks in that community — their First Amendment and God-given human rights taken away — not by law, but by administration policy based on ignorance.
For reference to these important rulings, you may simply do an internet search for White vs City of Sparks, 9th Circuit Court (2007); Bery vs City of New York, 2nd Cir. Ct. (1996); Perry vs L.A.P.D., 9th Cir. Ct. (1997); and Gaudiya vs City and County of San Francisco (1990). If you don’t learn what your rights are as an Artist — you have no rights.
— Steven C. White
Artist/artist’s advocate Steven C. White’s victories in court:
Winning ruling in White, Klinefelter vs City of Reno, U.S. Dist. Court (2003)
Winning ruling in White vs City of Sparks, U.S. Dist. Court, 9th Circuit Court, U.S. Supreme Court (2007)
Winning ruling in Christensen vs Park City Utah, U.S. Dist. Court (2011)
Passage of Nevada State Assembly Bill 351, “Art in the Parks Bill,” opening public park for Art and Artists to be a permanent part of the recreational experience of the public parks. (2005)