(CN) – A Texas store owner and two local artists who transformed a wrecked Oldsmobile into a colorfully painted cactus planter with the message “make love not war” were unable to convince the 5th Circuit that their expressive artwork transcends a city ban on junked cars.
“Irrespective of the intentions of its creators or Planet K’s owner, the car-planter is a utilitarian device, an advertisement, and ultimately a ‘junked vehicle,'” Chief Judge Edith Jones wrote.
San Marcos, Texas, had enacted the ordinance to eliminate eyesores, including wrecked and inoperable cars.
Michael Kleinman, who runs Planet K stores in San Antonio and Austin, has a tradition of celebrating store openings with a “car bash,” a charity event in which the public pays to smash a car with a sledgehammer. The wrecks are then filled with dirt, planted with vegetation, painted and displayed outside the store.
Kleinman commissioned local artists Scott Wade and John Furly to paint an Oldsmobile 88 for his new store in San Marcos. He gave few specific instructions, but asked them to incorporate the phrase “make love not war” into the design.
Wade said he tried to transform a “large gas-guzzling vehicle” into “something that’s more respectful of the planet and something that nurtures life as opposed to destroys it.” He described his message as a depiction of the link between gasoline and the Iraq war.
The store and its employees received several tickets for violating the city’s junked-car ordinance, and Kleinman contested them and asked for a hearing.
He then sued the city in state court, and the case was removed to federal court. The artists joined the lawsuit, claiming the ordinance violated their rights under the Visual Artists Right Act (VARA).
Kleinman pushed a First Amendment claim, saying the ordinance unconstitutionally barred the expressive work of art.
The district rejected both claims and ordered the plaintiffs to comply with a municipal court order to remove the car-planter.
The New Orleans-based appeals court also rejected the First Amendment and VARA claims, but reversed the lower court’s “attempt to enforce the municipal court order.”
Chief Judge Jones said the city has the authority and justification for enacting the ordinance, and the regulation itself is content-neutral and narrowly tailored to protect public health and safety.
The artists’ claims fail, Jones added, because the planter is an advertisement that’s not protected by VARA.
However, she agreed with Kleinman that the lower court can’t force him to remove the planter, because the city never asked for such an order.
“Although the city contends that the order is actually in Kleinman’s favor – by giving him 30 days to comply before any city enforcement action – the district court lacked jurisdiction to grant this relief,” Jones wrote.
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