SIGNIFICANCE: WHITE V. CITY OF SPARKS
The city of Sparks, Nevada limited artists without vending permits to selling only those items pre-approved by the city as “convey[ing] an express or obvious religious, political, philosophical, or ideological message” in parks and the city square. The city policy had adopted the Ninth Circuit’s description in Gaudiya Vaishnava Society v. City and County of San Francisco, 952 F.2d 1059 (9th Cir. 1990), of merchandise protected under the First Amendment, the sale of which cannot be prohibited by a local ordinance or any other type of regulation.
Steven C. White, a painter who sells his artwork on sidewalks and in parks, challenged this city policy. He argued that he should be allowed to sell his paintings free of restraint, since he has the right to display them on that basis. The city argued that White’s paintings did not patently express a religious, political, philosophical, or ideological message, and thus were not entitled to automatic First Amendment protection. After the District Court granted White’s motion for partial summary judgment, the Ninth Circuit affirmed and held that the sale by an artist of his/her original paintings is protected under the First Amendment. The rulings made the following determinations:
The city’s vendor-permit policy applied the incorrect First Amendment standard, as the Gaudiya standard does not apply to visual art that is inherently expressive. Since an artist’s self-expressive painting conveys the artist’s perspective, it is entitled to First Amendment protection.
The paintings sold by White are not considered commercial speech because they do more than propose a commercial transaction.
The Supreme Court denied the city’s petition for a writ of certiorari.