San Marcos Mercury | Local News from San Marcos and Hays County, Texas
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March 11th, 2008
Federal judge says planter not protected by First Amendment

From staff and submitted reports

A federal judge has granted a motion by the City of San Marcos to dismiss the appeal of a store owner trying to save a junk vehicle that had been converted into a planter at the Planet K headshop on the interstate in San Marcos.

On Friday, U.S. District Judge Sam Sparks said he would grant the city’s motion to dismiss the claim by Michael Kleinman that his vehicle planter is a form of artistic expression protected by the First Amendment. City officials received the official decision today.

“Though a junked vehicle may be a particularly effective mode of expressing concern over pollution caused by automobiles, the use of an automobile as an artistic medium is still part of the manner in which Plaintiff’s statement is expressed, not the statement itself,” Judge Sparks wrote. “The automobile is not the message.”

“It is clear the City’s ordinance is not aimed at restricting speech about automobile pollution, and Plaintiff is free to express his concern over automobile pollution in a host of other ways that do not violate city ordinances,” Sparks wrote. “The ordinance is reasonably tailored to protect the public’s interest in removing the ‘urban blight’ caused by junked vehicles in public places.”

The court case began January 10 when Municipal Court Judge John Burke held a hearing and ruled that the vehicle planter violates city ordinance that outlaws junked or nuisance vehicles in public places.
Kleinman filed a second lawsuit in State District Court arguing that the Municipal Court’s decision should not be enforced because the ordinance is unconstitutional. After Burke’s ruling in January, Kleinman said, “We’re going to take it as far as they want to take it. It’s not a junk vehicle. It no longer moves, never will move, and on top of that, it’s got art on it. And it’s a planter on top of that. And it’s got freedom of speech on top of that.”

Because of the constitutional issue involved, Assistant City Attorney Andy Quittner represented the city in moving the case to federal district court.

“Two courts have ruled that the constitution does not protect the use of a junked vehicle, visible from a public street, as a sign board to display a message. The case is over and it is my hope that Planet K will demonstrate its respect for the law and the rulings of these courts by voluntarily removing the junked vehicle.” Quittner said.

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