‘The city’s argument … must fail’

Steven White is a traveling artist who paints landscapes that have "a Native American theme, incorporating his philosophy about the environment, the spirituality of the universe and the need to protect animals," according to court documents filed in Reno in 2003.

Whatever.

The artist stopped in Northern Nevada in 2002, aiming to sell some paintings to earn enough money to visit his sick mother in San Francisco. But whenever he tried to set up an easel in the town of Sparks he was arrested, according to his lawsuit.

Under a Sparks ordinance, selling goods in parks or Victorian Square is prohibited without a permit.

The city makes First Amendment exceptions for items that are "pre-approved" by city employees if they are determined "to convey and express an obvious religious, political, philosophical or ideological message," according court papers.

Mr. White's lawyer, Terri Keyser-Cooper, argued that this "pre-approval" requirement constitutes a "prior restraint" of Mr. White's constitutional rights, asserting his paintings "are inherently personal expression and protected by the First Amendment."

In 2005, federal Judge David Hagen agreed with that argument. The city appealed.

Last week, a three-judge panel of the 9th U.S. Circuit Court of Appeals upheld the lower court ruling. The U.S. Supreme Court "has been clear that the arts and entertainment constitute protected forms of expression under the First Amendment," the 9th Circuit panel pointed out. "Against this backdrop, it is clear that White's self-expression through painting constitutes expression protected by the First Amendment. The city's argument that the message conveyed must be either explicit or implicit but obvious in order to merit protection must fail."

The new ruling is in keeping with an earlier, 2003 decision in which a federal judge ruled against the adjacent city of Reno on similar grounds, approving a $47,500 settlement for Mr. White and sculptor Ben Klinefelter.

That's almost a trend.

"We're ecstatic. We're jumping up and down," Ms. Keyser-Cooper said Wednesday. "The ruling means that Mr. White and any other artist may sell his own personally created art in the parks of Sparks and in Victorian Square without a license or permit."

Good.

A limited case can be made that anyone hoping to organize a massive activity in a public park or street -- a parade, a day-long festival likely to attract thousands of people -- can be required to file plans in advance with the municipality, thus allowing adequate time to assign extra police officers, to make arrangements for sufficient portable toilets, to ensure that two conflicting events don't attempt to set up in the same space at the same time.

But for an artist to set up an easel, create a few sketches, and sell them to willing passers-by? We're supposed to believe this is no longer a "right," but some kind of "privilege" that a bureaucrat can decide to allow or deny as he sees fit, like the King of England waving his scepter and granting lands, rents and estates to some new-made Duke for his successful defense of aristocratic privilege against the dastardly French Republicans?

Thomas Riley, senior assistant city attorney for Sparks, says the town may ask for a review of the decision by the full appeals court, or even take the case to the U.S. Supreme Court.

Fine.

Let's seek a ruling with impact all across the nation on whether an artist can be barred from selling his works without a "permit." Past time for some overgrown bureaucratic hedges to get trimmed.