Posted by: Patricia Salkin | April 4, 2010

Junked Vehicle Used as a Car Planter is not Art Entitled to First Amendment Protection

“This appeal concerns whether a junked-vehicle ordinance designed to eliminate eyesores and promote public order … can be applied to a wrecked Oldsmobile 88 that has been put to use as a cactus planter, colorfully painted, and adorned with the words ‘make love not war.’ ” The plaintiff, Kleinman, operated a store that sold “funky” goods. The store had a tradition of celebrating new store openings with a “car bash,” a charity event at which the public paid for the privilege of sledgehammering a car to “a smashed wreck.” These wrecks were then filled with dirt, planted with vegetation, painted, and placed outside each store as a unique advertising device.  In the case of the Oldsmobile, it had been painted by two local artists, with Kleinman asking that “make love not war” be included in the design. The City of San Marcos ticketed the store and various employees under an ordinance that declared junked vehicles to be a public nuisance, and which prohibited citizens from placing or keeping junked vehicles on their property. Kleinman contested the tickets and, when the citations were upheld, he sued, claiming that the ordinance violated his First Amendment rights.

The two local artists also sued under the Visual Artists Right Act (VARA), which provided that the author(s) of a work of visual art had the right to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation; further, that any intentional distortion, mutilation, or modification of that work was a violation of that right, and any intentional or grossly negligent destruction of that work was a violation of that right. 17 U.S.C. § 106A(a)(3).  The City stipulated that “the vehicle/planter is an object which contains and projects some level of artistic expression after it was painted by Plaintiffs [artists] and altered to allow it to grow plant-life.” The district court determined that the application of the junked-car ordinance to the car-planter would not violate the First Amendment, that the artists had failed to state a statutory claim for relief, and ordered them to comply with the removal order of the San Marcos municipal court. The plaintiffs appealed, but conceded that the car fell within the definition of the ordinance.

The Fifth Circuit affirmed in part. While artworks were communicative and entitled to First Amendment protection, the court remained skeptical that “the heavy machinery of the First Amendment [was] to be deployed in every case involving visual nonspeech expression.” In this case, “[i]rrespective of the intentions of its creators or [its] owner, the car-planter [was] a utilitarian device, an advertisement, and ultimately a ‘junked vehicle.’ These qualities objectively dominate[d] any expressive component of its exterior painting.” Because the City conceded that the car-planter had some protected expressive content, however, the court applied the intermediate scrutiny test in United States v. O’Brien, 391 U.S. 367 (1973), finding that the ordinance survived review under this test. Junked vehicles were a nuisance that contributed to blight and “the depressing effect of junked vehicles on property values.” Further, the ordinance was not intended to regulate “speech” at all, but was a content-neutral health and safety regulation, one that was reasonably and narrowly tailored.

Dealing with the VARA, the court differed from the court below in beginning its analysis with a preliminary statutory issue: whether the car-planter qualified as a “work of visual art” under the VARA. The statute excluded “any merchandising item or advertising, promotional, descriptive, covering, packaging material or container” from protection. The car-planters were “promotional” material and, thus, outside of the VARA’s protection.  In any event, the ordinance did not require the destruction of a junked vehicle, “merely its screening from general public view.” However, the judgment was vacated to the extent that the district court improperly ordered the plaintiffs to comply with the municipal court order, as the City never requested any affirmative relief, and the two artists were not parties to the municipal court’s order and could not be ordered to comply.  The result? “Make law, not car.”

Kleinman v. City of San Marcos, 2010 WL 447894 (5th Cir. (Tex.) 2/11/2010)

The opinion can be accessed at: 

This abstract appeared in a March issue of IMLA E-News.  For more information about IMLA visit

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