A sign in front of Michael Kleinman’s San Marcos, Texas store saying “make love not war” would have been protected by the First Amendment’s guarantee of Free Speech, but that same message painted on a junked Oldsmobile 88 doesn’t get the same protection.
Earlier this month, the Fifth Circuit U.S. Court of Appeals ruled that Kleinman’s wrecked Oldsmobile 88 that he turned into a cactus planter with colorful painting and adorned with the familiar peace slogan is subject to a local ordinance designed to eliminate public eyesores. A three judge panel dismissed Kleinman’s claim that his clunker doubled as expressive artwork protected by the First Amendment.
Kleinman operates the Planet K chain of stores throughout the San Antonio and Austin areas. The stores are described as “funky establishments” that sell novelty items. Part of the kitschiness to the stores is for each new opening Kleinman invites the public to take a sledgehammer to a car and then uses the wrecked vehicle as a planter which doubles as a “unique advertising device.”
The city of San Marcos doesn’t think too much of the lemon turned planter/artwork and cited Kleinman under its junked vehicle ordinance. The judges ruled that the junked vehicle “objectively dominates” any comparison to the artistic component of its exterior painting and that the city was within its rights to enforce the ordinance.
Here is a link to the 11 page opinion:
http://www.ca5.uscourts.gov/opinions/pub/08/08-50960-CV0.wpd.pdf