In an effort to make a statement about car pollution Michael Kleinman, a store manager in San Marcos, TX, commissioned two artists to transform a wrecked car in front of his store into a painted cactus planter. While it was on private property, the car was in clear view of the highway. The city fined Kleinman for violating junked car laws, which require junked cars to be out of sight of the public.
Kleinman filed a civil suit in state court claiming that the statute violated his constitutionally protected freedom of speech. The case was removed to federal court and the artists joined the lawsuit claiming violations of their First Amendment rights and VARA. The District Court agreed that the car artwork had expressive content and applied the O’Brien test. Not only does the test look at whether the statute furthers an important government interest or if the interest is unrelated to the suppression of free speech, but it also takes into consideration whether the incidental restriction of free speech is no greater than is essential to the furtherance of that interest. The Court decided that the statute is narrowly tailored because people could still come to see the car planter, even if it is not in front of the store. The Fifth Circuit Court of Appeals only added that the regulation is reasonably tailored because Kleinman could still advertise the work with pictures of it, and people could come to see it.
As for VARA, the District Court stated that a modification of placement does not constitute destruction, mutilation, distortion, or any modification that would otherwise be illegal. The Circuit Court further said that the car was promotional, which is outside VARA’s protection.