White v. City of Sparks ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN C. WHITE,  No. 05-15582
Plaintiff-Appellee, D.C. No.
v.  CV-03-00251-
CITY OF SPARKS DWH/RAM
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Nevada
David W. Hagen, District Judge, Presiding
Argued and Submitted
February 16, 2007—San Francisco, California
Filed August 29, 2007
Before: Betty B. Fletcher and Richard R. Clifton,
Circuit Judges, and Edward F. Shea,* District Judge.
Opinion by Judge B. Fletcher
*The Honorable Edward F. Shea, United States District Judge for the
Eastern District of Washington, sitting by designation.
10871
WHITE v. CITY OF SPARKS 10873
COUNSEL
Thomas F. Riley, Senior Assistant City Attorney, Sparks,
Nevada, for the defendant-appellant.
Terri Keyser-Cooper (argued), Law Office of Terri Keyser-
Cooper, Reno, Nevada, and Diane K. Vaillancourt (briefed),
Law Office of Diane K. Vaillancourt, Santa Cruz, California,
for the plaintiff-appellee.
OPINION
B. FLETCHER, Circuit Judge:
This appeal presents the question of what protection the
First Amendment extends to the sale by an artist of his paint-
ings. We hold that an artist’s sale of his original artwork con-
stitutes speech protected under the First Amendment.
10874 WHITE v. CITY OF SPARKS
I.
Appellee Steven C. White (“White”) is an itinerant artist
who earns a living by setting up an easel on a city’s sidewalks
and in parks and selling his paintings to passersby who take
an interest in his work. A painter of nature scenes, White
believes his paintings convey, among other messages, the
message that human beings are driving their spiritual brothers
and sisters, the animals, into extinction.
The city of Sparks, Nevada (“Sparks”) prohibits the sale of
merchandise in its parks and limits sales in the redevelopment
area known as Victorian Square to those vendors having per-
mits under Sparks Municipal Code §§ 5.59 et seq. For those
without vendor’s permits, Sparks makes a limited exception
allowing the display of merchandise in its parks and Victorian
Square as well as the sale (in both places) of items that have
received the pre-approval of city employees through a First
Amendment exception to the vendor-permitting ordinances
(“First Amendment exception” or “pre-approval policy”).
According to the city, to gain such preapproval an item must
be submitted to the city and determined by city officials to
convey an express or obvious religious, political, philosophi-
cal, or ideological message under Gaudiya Vaishnava Society
v. City and County of San Francisco, 952 F.2d 1059, 1063
(9th Cir. 1990) (extending First Amendment protection to
“the sale of merchandise which carries or constitutes a politi-
cal, religious, philosophical or ideological message”).1
White brought a facial challenge to Sparks’s vendor-
permitting scheme. He then moved for summary judgment on
the question of whether he may sell his paintings on the same
1
The city has presented no evidence confirming the existence of this
First Amendment exception except for the representations of counsel
before this court and before the district court. However, because the city
has conceded the exception, we, like the district court, will presume the
existence of the policy.
WHITE v. CITY OF SPARKS 10875
basis as he may display them, i.e., free of restraint. The city
opposed on the ground that White’s paintings are unprotected
by the First Amendment because they do not patently express
a religious, ideological, political, or philosophical message.
Agreeing for the most part with White and reading Gaudiya
broadly, the district court granted White’s motions2 to the
extent he requested a ruling that his paintings expressed a
message warranting First Amendment protection. To the
extent White requested a global ruling that all visual art is per
se constitutionally protected, the district court declined to
extend its ruling beyond protection of White’s paintings.
Finally, the district court concluded that Sparks’s pre-
approval policy constituted an unconstitutional prior restraint
because it failed to include objective criteria for approving or
rejecting a piece of artwork. Sparks appealed. We have juris-
diction pursuant to 28 U.S.C. § 1291.3II.
We review de novo a district court’s grant of partial sum-
mary judgment, United States v. $100,348.00 in U.S. Cur-
rency, 354 F.3d 1110, 1116 (9th Cir. 2004), and may affirm
on any ground supported by the record, Venetian Casino
Resort v. Local Joint Executive Bd. of Las Vegas, 257 F.3d
937, 941 (9th Cir. 2001). After “viewing the evidence in the
light most favorable to the nonmoving party,” we determine
“whether there are any genuine issues of material fact and
whether the district court correctly applied the relevant sub-
stantive law.” Am. Civil Liberties Union of Nev. v. City of Las
Vegas, 333 F.3d 1092, 1097 (9th Cir. 2003).
2
White filed separate motions for the city’s parks and for Victorian
Square. As they present the same First Amendment question, we analyze
the motions together.
3
The district court’s partial grant of summary judgment and denial of
the rest constituted a final judgment in this case, as all other claims have
been resolved. Sparks appeals the partial grant. White does not appeal the
partial denial.
10876 WHITE v. CITY OF SPARKS
III.
The parties argue over law, not fact. To that extent, sum-
mary judgment is appropriate because no genuine issue of
material fact existed. We therefore turn to the question of
whether the district court “correctly applied the relevant sub-
stantive law.” Id. at 1097.
A.
Sparks argues that the First Amendment protects the sale of
paintings in public fora only if the paintings convey an
explicit—or an implicit but obvious—message that fits into
one of the categories we established in Gaudiya. We disagree.
[1] In Gaudiya, we held that First Amendment protection
extended to the “sale of merchandise which is inextricably
intertwined with a statement carrying a religious, political,
philosophical or ideological message.” 952 F.2d at 1066. The
merchandise at issue in Gaudiya—clothing, jewelry, and
stuffed animals sold as fundraisers by charities and advocacy
groups—lacked inherent expressive value and gained expres-
sive value only from its sale being “inextricably intertwined”
with pure speech. Id. at 1064. To the extent that visual art is
inherently expressive, the Gaudiya test is inapplicable.
[2] While not having spoken directly on the protections
afforded visual art, the Supreme Court has been clear that the
arts and entertainment constitute protected forms of expres-
sion under the First Amendment. See Ward v. Rock Against
Racism, 491 U.S. 781, 790 (1989) (music without words);
Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65-66
(1981) (dance); Se. Promotions, Ltd. v. Conrad, 420 U.S. 546(1975) (theatre); Doran v. Salem Inn, Inc., 422 U.S. 922, 932-
34 (1975) (topless dancing); Miller v. California, 413 U.S. 15,
34-35 (1973) (serious artistic work, unless obscene in the
legal sense); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495,
501-02 (1952) (movies).
WHITE v. CITY OF SPARKS 10877
[3] 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.” Hurley v. Irish-Am. Gay, Les-
bian & Bisexual Group of Boston, 515 U.S. 557, 569 (1995).
Any artist’s original painting holds potential to “affect public
attitudes,” Joseph Burstyn, Inc., 343 U.S. at 501, by spurring
thoughtful reflection in and discussion among its viewers. So
long as it is an artist’s self-expression, a painting will be pro-
tected under the First Amendment, because it expresses the
artist’s perspective.4
In holding that the First Amendment protects an artist’s
original paintings, we join two of our sister circuits. See ETW
Corp. v. Jireh Pub., Inc., 332 F.3d 915, 924 (6th Cir. 2003)
(holding that “[t]he protection of the First Amendment . . .
includes . . . music, pictures, films, photographs, paintings,
drawings, engravings, prints, and sculptures”); Bery v. City of
New York, 97 F.3d 689, 696 (2d Cir. 1996) (“[P]aintings, pho-
tographs, 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 Piarowski v.
Ill. Cmty Coll. Dist. 515, 759 F.2d 625, 628-32 (7th Cir.
1985) (holding that stained glass windows, as “art for art’s
sake,” were protected under the First Amendment).
The city’s argument that the message conveyed must be
either explicit or implicit but obvious in order to merit protec-
4
We expressly reserve the question whether all paintings merit First
Amendment protection. We are not asked to decide the protection
accorded to paintings that are copies of another artist’s work or paintings
done in an art factory setting where the works are mass-produced by the
artist or others.
10878 WHITE v. CITY OF SPARKS
tion must fail. As the Court has explained, “a narrow, suc-
cinctly articulable message is not a condition of constitutional
protection, which if confined to expressions conveying a par-
ticularized message would never reach the unquestionably
shielded painting of Jackson Pollock, music of Arnold
Schöenberg, or Jabberwocky verse of Lewis Carroll.” Hurley,
515 U.S. at 569 (internal quotation marks and citation omit-
ted).
Nor are we convinced by the city’s argument that White’s
sale of his paintings removes them from the ambit of pro-
tected expression. “[T]he degree of First Amendment protec-
tion is not diminished merely because the [protected
expression] is sold rather than given away.” City of Lakewood
v. Plain Dealer Pub. Co., 486 U.S. 750, 756 n.5 (1988); see
also Riley v. Nat’l Fed’n of the Blind of N. C., 487 U.S. 781,
801 (1988) (“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.”); Village
of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620,
633 (1980).
Finally, even purely commercial speech is entitled to sig-
nificant First Amendment protection. See Glickman v. Wile-
man Bros. & Elliott, Inc., 521 U.S. 457, 480-81 (1997); City
of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 421-
23 (1993); Va. Bd. of Pharmacy v. Va. Citizens Consumer
Council, Inc., 425 U.S. 748, 762 (1976). Purely commercial
speech is “speech which does ‘no more than propose a com-
mercial transaction.’ ” Virginia Bd. of Pharmacy, 425 U.S. at
762 (quoting Pittsburgh Press Co. v. Pittsburgh Comm’n on
Human Relations, 413 U.S. 376, 385 (1973)). White’s paint-
ings, which communicate his vision of the sanctity of nature,
do more than propose a commercial transaction and therefore
are not commercial speech.
[4] In sum, we agree with the district court that the city
applied the wrong First Amendment standard in its First
WHITE v. CITY OF SPARKS 10879
Amendment exception to its vendor-permitting policy and
hold that an artist’s sale of his original paintings is entitled to
First Amendment protection.5
B.
[5] Sparks contends that the district court, in ruling that
White’s paintings were protected under the First Amendment,
usurped the city’s authority to make that determination in the
first instance. This argument ignores our tripartite structure of
both state and federal government. While the executive
branch must both interpret and apply the law, that authority
does not strip the judiciary of its authority to review laws at
issue in cases properly before it to determine, for example,
whether they impermissibly tread on First Amendment rights.
See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)
(“It is a proposition too plain to be contested, that the consti-
tution controls any legislative act repugnant to it.”); see also
Gaudiya, 952 F.2d at 1065 (ruling, in a facial challenge to an
ordinance, that the merchandise at issue was protected).
C.
[6] Finally, Sparks argues that White lacks standing to chal-
lenge the city’s permitting scheme because he never submit-
ted his artwork to the city for review. Because Sparks raised
this argument for the first time in its reply brief to this court,
it has waived the argument. See Holland Am. Line Inc. v.
Wrätsilä N. Am., Inc., 485 F.3d 450, 457 (9th Cir. 2007)
(holding that appellant waived an argument by failing to raise
it before the district court).
5
Because we set out a materially different First Amendment standard
than that the city had articulated, we do not reach the city’s arguments that
use of a dictionary and common sense to define the Gaudiya categories
sufficiently constrained official discretion to avoid creating a risk of cen-
sorship.
10880 WHITE v. CITY OF SPARKS
IV.
For these reasons, the district court’s grants of partial sum-
mary judgment are AFFIRMED.