CAA Joins Amicus Brief Urging Supreme Court to Review Appellate Decision That Only “Great” Art Is Protected by the First Amendment
posted by Christopher Howard — Jul 22, 2010
CAA joined with artists and other arts-support organizations in filing an amicus brief asking the US Supreme Court to grant a petition to review a case involving an artwork removed from public view in San Marcos, Texas. In that case, Kleinman v. City of San Marcos, the US Court of Appeals for the Fifth Circuit held that the First Amendment only protects “great” works of art.
The brief explains how this new, “great” art standard is inconsistent with the First Amendment and would give governments the ability to ban disfavored art and contemporary art that has not yet become iconic. It points out that whether art is “great” art is not susceptible to an objective, value-neutral determination, but would require courts to act as art critics based on expert evidence of what constitutes “greatness” in art. The brief also highlights a number of examples of artists and art whose work was not initially regarded as “great,” but only became so over time. For all of these reasons, the brief argues, the new and unprecedented “great” art standard of the Fifth Circuit is troubling, and the Supreme Court should review and reverse the appellate decision.
In the city of San Marcos, Texas, participants at a charity event for the opening of a store, Planet K, were invited to smash up an old car. The car was then converted into a cactus planter and painted on the exterior by two local artists, with scenes from San Marcos, abstract designs, and the phrase “Make Love, Not War.” The stated intention of one of the petitioners, Michael Kleinman, organizer of the event and owner of the store, was always to turn the wrecked car into an artwork. The resulting artwork was displayed on private property (the Planet K parking lot) and was easily visible to the public from thoroughfares.
A San Marcos ordinance prohibits, as a public nuisance, any display of a “junked vehicle” that can been seen by the public. Based on the First Amendment—that their artwork is protected speech—Kleinman and the artists sued the city, to enjoin it from applying the ordinance to their artwork. The US District Court for the Western District of Texas found for the city. The court held that the ordinance did not violate the First Amendment, as applied to plaintiffs’ artwork, because they had alternative avenues of communicating their message.
This past February, the Fifth Circuit affirmed that decision. It first questioned whether the wrecked car/planter/artwork could be considered constitutionally protected expression. In particular, the appeals court read a prior Supreme Court decision to indicate that the First Amendment protects only “great” works of art, and that the Supreme Court has not otherwise set out the First Amendment framework to be applied to visual works of art. The Fifth Circuit also went on to hold that even if the First Amendment did apply in this case, under prevailing standards the city’s nuisance law could apply to the artwork. After the decision of the Fifth Circuit, the city seized and removed—but has not yet destroyed—the artwork.
The artists filed a petition for certiorari to the Supreme Court, requesting that the court review the decision of the Fifth Circuit. There are several grounds for the petition, one of which is that “great art” should not be the test for whether an artwork is protected by the First Amendment.
First Amendment protection for works of art has long been a core concern of CAA and important to its advocacy program. In the last Supreme Court term, CAA joined the National Coalition Against Censorship in filing an amicus brief in the case of United States v. Stevens. In that case, the Supreme Court ultimately held, 8–0, that the federal statute criminalizing depictions of animal cruelty violated the First Amendment, agreeing with the position taken by CAA in its brief. Earlier, CAA joined an amicus brief in the NEA Four case (National Endowment for the Arts v. Finley), in which the Supreme Court ultimately held, in 1998, that it was not unconstitutional for Congress to mandate that the National Endowment for the Arts take into account “general standards of decency and respect for the diverse beliefs and values of the American public” when funding artists.
Other Signers to the Brief
The amicus brief to which CAA is a party was filed on July 8, 2010. The other signers are: Texas Accountants and Lawyers for the Arts; Volunteer Lawyers and Professionals for the Arts (formerly Tennessee Volunteer Lawyers for the Arts); Northwest Lawyers and Artists (Portland, Oregon); Comic Book Legal Defense Fund; ArtCar Fest; the artist historian Douglas Nickel; and artists Butch Hancock, Kelly Lyles, Leo Aston, Alan Pogue, Jan D. Elftman, Philo Northrup, Harrod Blank, Emily Duffy, and Graydon Parrish.
Download a PDF of the Kleinman amicus brief. A second PDF contains the petition for certiorari, the District Court and Fifth Circuit opinions, and, at the end of the file, photographs of the artwork in question.