Artist’s Sale Of His Original Artwork Is Speech Protected By The First Amendment

In White v. City of Sparks, (— F.3d —, 2007 WL 2429380, 2007 Daily Journal D.A.R. 13,286, C.A.9 (Nev.), Aug. 29, 2007)), the United States Court of Appeals considered an artist’s challenge to a city’s permitting requirements for the sale of his artwork on city sidewalks and in city parks.

The court ruled that the artist’s sale of his original artwork was speech protected by the First Amendment to the United States Constitution and that the city therefore could not require him to obtain a city permit to sell it.


Steven White, an itinerant artist in Sparks, Nevada (“City”), painted nature scenes and sold his paintings to passersby on City sidewalks and in City parks. He claimed his paintings conveyed his concerns about humans causing the extinction of animals.

The City, however, prohibits sales of merchandise in its parks, limits outdoor vendors to a specific area within the city, and requires them to obtain vendor’s permits. The City provides a limited exception to that permit requirement for items submitted to the City and determined by City officials to convey an obvious religious, political, philosophical or ideological message.

White challenged the City’s permitting process as a restriction of his right to express himself through his paintings. The City claimed that his paintings are not protected as speech because they do not convey an obvious point of view or message. The district court ruled that the City’s approval policy was unconstitutional because it failed to include specific criteria for approving or rejecting a piece of artwork. The City appealed.


The court cited its ruling in Gaudiya Vaishnava Society v. City and County of San Francisco, 952 F.2d 1059, 1063 (9th Cir. 1990), which extended First Amendment protection “to the sale of merchandise which carries or constitutes a political, religious, philosophical or ideological message.” That, combined with a series of United States Supreme Court rulings that arts and entertainment are protected forms of expression, makes it clear that White’s expression of his views through the sale of his paintings is protected, the court said.

The City’s argument that the message conveyed must be explicit or obvious to be protected fails the test of Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 569 (1995), in which the Supreme Court explained that “a narrow, succinctly articulable message is not a condition of constitutional protection.” Similarly, the City’s contention that White’s sale of his paintings is a commercial action and not protected speech also fails because the paintings communicate White’s feelings about the sanctity of nature.

The City’s vendor-permitting policy therefore unconstitutionally restricted White’s First Amendment right to express himself through the sale of his paintings. The district court judgment was affirmed.