By BILL PETERSON
Editor at Large
A federal judge has agreed to reconsider whether a junked car in San Marcos really is an artwork, and whether the First Amendment protects the object from the city’s junk vehicle ordinance.
Judge Sam Sparks threw out his own March 7 ruling to dismiss Planet K owner Michael Kleinman’s suit against the city for violating his right to free speech. Sparks has set a new bench trial for May 27.
Sparks also issued an injunction prohibiting the controversial object’s removal from the Planet K location at 910 North IH-35 until he rules further.
The federal judge is reconsidering whether a junk vehicle converted to a planter outside of Planet K is so integral to Kleinman’s statement about automobile pollution that removing the automobile would effectively quash the statement. In his March 7 ruling, Sparks said Kleinman’s vehicle is a means of expressing the message, but it is not the message itself.
“However,” Sparks said in an April 30 order, “if Kleinman can establish the car planter itself is his message and is therefore entitled to whatever First Amendment protections attach to Kleinman’s free expression of his ideas on automobile pollution, Kleinman will have established the junked car ordinance cannot be constitutionally applied in this case because it requires him to screen the junked car from all public view, thus providing no ‘alternative channel of communication’ for his unique messsage.”
In addition to vacating his March 7 ruling, Sparks also granted Kleinman’s request to add San Marcos artists Scott Wade and John “Furly” Travis as plaintiffs. Wade and Travis, who painted the outside of the car with scenes of iconic San Marcos, seek protection for their work under the Visual Artists’ Rights Act of 1990.
Kleinman held a charity event last fall in which he invited patrons to smash the Oldsmoble with a sledgehammer for $1 per swing. Kleinman then converted the wreck into a planter, filling the cavity with soil and planting native cacti inside. Kleinman also arranged for Travis and Gage to paint the vehicle.
The city cited Planet K last November for placing a junk vehicle in public view. The case went before the San Marcos municipal court, which ruled, in the city’s favor, that the object is a junk vehicle.
Kleinman then sued the city in state district court and the city successfully moved the case to federal court to address the constitutional issue. As a result of those arguments, Sparks issued his March 7 ruling that dismissed Kleinman’s suit.
Kleinman has since retained Austin attorney Peter Kennedy, a media and First Amendment specialist, who motioned for Sparks to reconsider. On April 30, Sparks withdrew his earlier order of dismissal and set the new trial.
“(Sparks) didn’t have the benefit of our side of the argument,” Kennedy said. “If Planet K shows that using the vehicle is part of the message, then it is protected.”
Kennedy gave the “Cadillac Ranch” in Amarillo and John Chamberlain’s sculptures in Marfa as other examples within Texas of art statements in which cars are essential.
However, San Marcos attorney Andrew Quittner said Kleinman’s argument to that effect won’t start, as it were, because other venues remain for making statements about automobile pollution, if, indeed, the Planet K car is any kind of statement at all.
“First, they have to show that it’s speech and there’s no other way (the message) could be put out,” Quittner said.
Quittner added that it wouldn’t be sufficient for Kleinman to show that the car is the most effective way to make his statement, or even that it’s the best way, but that it’s the only way.
In his March 7 ruling, Sparks upheld the municipal court’s ruling that the object is a junk vehicle because Kleinman didn’t appeal on time to the correct venue. Once the time for appeal expired, Sparks said, the municipal court’s decision was final and the doctrine of res judicata prohibits the re-opening of the same case between the same parties.
However, Sparks denied the city’s assertion of res judicata in his April 30 decision because Kleinman and the municipal judge both accepted Quittner’s representation that no appeal was available and that Kleinman’s only recourse was to sue in district court.
See also: When is a car not a car?