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Artist's right to sell Art protected by 1st Amendment (Carson City) Ad id: 1602131869290013 |  Views: 189

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AS A FORM OF SELF EXPRESSION, IS ART PROTECTED BY THE FIRST AMENDMENT ?ANSWER; YES! The Fine Arts have been considered as a form of protected speech / self expression since the founding of our Country in 1776. In fact the Arts are often times inseparably intertwined with spoken and written self expression and art is also considered to be the oldest and one of the most powerful forms of self expression. Even Plato acknowledged this power of the Arts when speaking to the Forum over 2000 years ago; "They have long know of its ability to reach both the intellect an the emotions and have sought to control the Arts to serve the interests of the State."Quotes from the Federal Court of Appeals for the 9th Circuit and United States Supreme Court in White vs City of Sparks, (2007);"So long as it is an artist's self-expression, a painting will be protected under the First Amendment, because it expresses the artist's perspective.""Against this backdrop, it is clear that White's self-expression through painting constitutes expression protected by the First Amendment."   "In painting, an artist conveys his sense of form, topic, and perspective."   "A painting may express a clear social position, as with Picasso's condemnation of the horrors of war in Guernica, or may express the artist's vision of movement and color, as with "the unquestionably shielded painting of Jackson Pollock.".   "Any artist's original painting holds potential to affect public attitudes, by spurring thoughtful reflection in and discussion among its viewers."OK, PAINTINGS ARE PROTECTED BUT WHAT OTHER FORMS OF "ART" ARE PROTECTED BY THE FIRST AMENDMENT???ANSWER; According to the 2nd Cir. Court, 6th Circuit Court, 7th Circuit Court and 9th Circuit Court they list the forms of Artistic Self Expression that reach the full protection of the First Amendment as; Paintings, Drawings, Sculpture, Photography, Prints, Engraving, Stained Glass "as art for art's sake", Music, Dance, Theater, and Films. What these forms of Self Expression have in common is that they have NO Intrinsic Value beyond the message they convey and as such are purely expressive of the original Artists ideas, concepts, emotions, etc..Quotes from the 9th Cir. Court in White vs Sparks, (2007);In holding that the First Amendment protects an artist's original paintings, we join two of our sister circuits.   See (6th Cir.2003) (holding that "the protection of the First Amendment ․ includes ․ music, pictures, films, photographs, paintings, drawings, engravings, prints, and sculptures");  See (2d Cir.1996) ("[P]aintings, photographs, prints and sculptures ․ always communicate some idea or concept to those who view it, and as such are entitled to full First Amendment protection.");   see (7th Cir.1985) (holding that stained glass windows, as "art for art's sake," were protected under the First Amendment).SO, ART IS PROTECTED SPEECH! WHOOPY, WHAT DOES THAT DO FOR ME AS AN ARTIST?Now we get into the important part. The United States Supreme Court has made it VERY CLEAR that the SALE of First Amendment Protected materials is also protected by the First Amendment! As a matter of fact the 9th Circuit Court addressed this very question of sales of First Amendment protected Art and held that an Artist has a First Amendment RIGHT to sell their Art on traditional public forums such as parks, sidewalks and public plazas. The 9th Circuit also held that an Artist is NOT a commercial vendor even when they sell their Art for profit. Sparks found out that these protected RIGHTS are NOT subject to a City License...any more than you have to get a license from the City to buy a gun! They are the Constitutional Right of ALL Citizens of America.Quotes from 9th Circuit Court in White vs Sparks;  "Nor are we convinced by the city's argument that White's sale of his paintings removes them from the ambit of protected expression."  "The degree of First Amendment protection is not diminished merely because the [protected expression] is sold rather than given away."  The 9th Cir. Court quoting the U.S. Supreme Court; "It is well settled that a speaker's rights are not lost merely because compensation is received;  a speaker is no less a speaker because he or she is paid to speak.""Finally, even purely commercial speech is entitled to significant First Amendment protection."    "Purely commercial speech is "speech which does 'no more than propose a commercial transaction.' " "White's paintings, which communicate his vision of the sanctity of nature, do more than propose a commercial transaction and therefore are not commercial speech.""In sum, we agree with the district court that the city applied the wrong First Amendment standard in its First Amendment exception to its vendor-permitting policy and hold that an artist's sale of his original paintings is entitled to First Amendment protection."WHY ARE THE "ARTS" CONSIDERED "SPEECH" WHICH IS FULLY PROTECTED BY THE FIRST AMENDMENT?Quoting from the 2nd Circuit Court of Appeals in Bery vs New York City, (1996); "The First Amendment shields more than political speech and verbal expression;  its protections extend to entertainment,  theater,  music, without regard to words,  peaceful marches to express grievances to governmental authorities, sit-ins by blacks to protest racial discrimination, the wearing of black arm bands to evidence disapproval of our involvement in Vietnam,  the refusal to salute the flag as part of a regularized school activity,  and most recently, parades with or without banners or written messages." "The Constitution looks beyond written or spoken words as mediums of expression." If the First Amendment reached only "expressions conveying a 'particularized message,' " its "protection would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schönberg, or Jabberwocky verse of Lewis Carroll."  The First Amendment has surely been valued as essential to the preservation of a political democracy in this country;  thus, even the pamphleteer espousing political sedition has been shielded from governmental suppression.  "even advocacy of violation [of the law], however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on").   The First Amendment's fundamental purpose, however, is to protect all forms of peaceful expression in all of its myriad manifestations. "it is no doubt true that a central purpose of the First Amendment ' "was to protect the free discussion of governmental affairs."  "But our cases have never suggested that expression about philosophical, social, artistic, economic, literary or ethical matters, is not entitled to full First Amendment protection".  "motion pictures are fully protected expression that "may affect public attitudes and behavior in a variety of ways, ranging from direct espousal of a political or social doctrine to the subtle shaping of thought which characterizes all artistic expression".Note; In the Bery vs New York case the lower District Court got it wrong and ruled against the Artists. In that light the 2nd Circuit is chastising the lower court in the following;"The district court viewed the First Amendment's primary function as safeguarding the free flow of political and religious views, and hence felt sanguine about the ordinance's interference with appellants' "wish to sell their apolitical paintings."  "The City apparently looks upon visual art as mere "merchandise" lacking in communicative concepts or ideas.   Both the court and the City demonstrate an unduly restricted view of the First Amendment and of visual art itself." "Such myopic vision not only overlooks case law central to First Amendment jurisprudence but fundamentally misperceives the essence of visual communication and artistic expression."   "Visual art is as wide ranging in its depiction of ideas, concepts and emotions as any book, treatise, pamphlet or other writing, and is similarly entitled to full First Amendment protection."  "Indeed, written language is far more constricting because of its many variants-English, Japanese, Arabic, Hebrew, Wolof, Guarani, etc.-among and within each group and because some within each language group are illiterate and cannot comprehend their own written language."   "The ideas and concepts embodied in visual art have the power to transcend these language limitations and reach beyond a particular language group to both the educated and the illiterate."   "As the Supreme Court has reminded us, visual images are "a primitive but effective way of communicating ideas ․ a short cut from mind to mind." "Visual images and symbols, for example, are used in the Third World so that individuals who are unable to read may readily recognize the party or candidate they wish to vote for."   "One cannot look at Winslow Homer's paintings on the Civil War without seeing, in his depictions of the boredom and hardship of the individual soldier, expressions of anti-war sentiments, the idea that war is not heroic.""Furthermore, written and visual expression do not always allow for neat separation:  words may form part of a work of art, and images may convey messages and stories." "As appellants point out, Chinese characters are both narrative and pictorial representations."   "Nahuatl, a language used by Aztec peoples in Central America, also incorporates pictures in its written language." "Visual artwork is as much an embodiment of the artist's expression as is a written text, and the two cannot always be readily distinguished." "The City argues that appellants' "expression" allegedly impinged by the Regulation is not in fact their art, but their peddling of the art."   "It argues that the sale of art is conduct, and in order to be constitutionally protected, the sale of protected material must be "inseparably intertwined with a 'particularized message.' " "The City further argues that appellants are free to display their artwork publicly without a license, they simply cannot sell it."HERE IS THE RESPONSE BY THE 2ND CIR. COURT TO THAT ARGUMENT BY NEW YORK CITY, IN TRYING TO IMPOSE A BUSINESS LICENSE REQUIREMENT ON ARTIST WHO SELL THEIR ART IN THAT CITY. MAKES YOU WONDER WHAT "ART TOWN" THINKS THEY ARE DOING TRYING TO IMPOSE A BUSINESS LICENSE ON ARTISTS UNDER THEIR BOGUS "FIRST AMENDMENT ARTISAN CODE"!!!"These arguments must fail."   "The sale of protected materials is also protected." "It is well settled that a speaker's rights are not lost merely because compensation is received;  a speaker is no less a speaker because he or she is paid to speak." AS AN ORIGINAL ARTIST YOU HAVE A FIRST AMENDMENT CONSTITUTIONAL RIGHT TO PERFORM, DISPLAY AND SELL YOUR SELF CREATED "ART" ON TRADITIONAL PUBLIC FORUMS...SUCH AS PARKS, SIDEWALKS, AND PLAZAS. THAT CONSTITUTIONAL RIGHT IS NOT SUBJECT TO YOU GETTING ANY LICENSE FROM CITY, COUNTY OR STATE GOVERNMENT....ANY MORE THAN YOU HAVE TO GET A LICENSE TO OWN A GUN! IT IS A RIGHT GUARANTEED TO ALL AMERICANS BY THE FIRST AMENDMENT AND THAT INCLUDES THE "SALE" OF YOUR ART. IT'S NOT SOME PRIVILEGE SUBJECT TO GETTING A BUSINESS LICENSE AND SALES TAX LICENSE!!!!THOSE WHO DON'T KNOW THEIR RIGHTS....HAVE NONE!!! GO BEFORE YOUR CITY COUNCIL (at open mike session) STAND UP AND DEMAND YOUR RIGHTS!!!!DEMAND THE RIGHTS OF YOUR CHILDREN AND THE ELDERLY TO HAVE AN EQUAL OPPORTUNITY TO PARTICIPATE IN THE ARTS IN OUR PUBLIC PARKS!!!Links to rulings and State Assembly Bill 351 opening parks in Nevada for Art to be part of the recreational experience of the parks;White v Sparks; http://caselaw.findlaw.com/us-9th-circuit/1300114.htmlBery v New York; http://caselaw.findlaw.com/us-2nd-circuit/1182584.htmlNV. State Assembly Bill 351, "Art in the Parks Bill"; http://www.leg.state.nv.us/statutes/73rd/Stats200506.html#Stats200506page527 Location: Carson City
 


 
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