Welcome to Public Displays of Expression. We are a grass-roots, not-for-profit project dedicated to educating individuals and communities about our rights, recognized under the First Amendment, to conduct purely expressive activities on traditional public fora such as parks, sidewalks, and plazas, and to receive remuneration as part of the purely expressive activity, without a business license, street vendors permit, or any other barriers to entry that are not equally applied to all persons on the public fora, narrowly tailored, and if prohibitive in nature, ensure an alternative channel of expression is available.
We also advocate for the adoption of business license and vendor permit ordinances that carve out specific exemptions for purely expressive activities, such as artistic self-expression and particularized message speech. These ordinances should enumerate the types of expressions that are considered fully protected forms of free speech as well as the freedoms afforded to those conducting such activities. Ordinances that differentiate fully protected forms of self-expression from forms of expression that receive limited protections make it possible for code enforcement officials to establish boundaries that protect the public interests and the rights of artists and other speakers whose activities full under the full protection of the First Amendment.
Every city has ordinances requiring those wishing to operate a business in the jurisdiction to apply for various licenses to operate legally. Rulings in White v. City of Sparks and Bery v. City of New York, established that speakers operating under the full protection of the First Amendment are exempt from such requirements. Despite the rulings in these landmark cases, virtually every city in the United States today has licensing codes which do not carve out exemptions for First Amendment protected speakers who want to display their work on the public fora and receive money in exchange for the expression.
Without exemptions in place, whether you are selling a painting or an all beef frank, in the eyes of the law you are considered a commercial vendor and are subject to regulatory restrictions. By categorizing them as commercial vendors you subject Artists and other First Amendment protected speakers to regulatory restrictions that can be used as a form of censorship and eliminate public forums as a channel of expression without leaving access to an alternative means of communication. This action has the effect of chilling the natural rights of all people, and disproportionately infringing upon the rights of the most vulnerable classes.
In some cities, business licensing codes carve out an exception for non-profits to sell 'expressive merchandise' protected by the more well known Gaudiya ruling, or for buskers to perform music for remunerations, but do not make the same exception for other First Amendment speakers. The decisions in Bery v. City of New York and White v. City of Sparks and many others that have followed, show that any ordinance which allows certain types of fully protected expression but not others, violates both the 1st and 14th Amendments.
It is imperative that we understand our rights, exercise them, and educate and encourage others to do the same. This issue is not about giving artists a way to make money. By creating space for the free exchange of ideas, we are ensuring the exists of a robust, equitable and accesible "Market-place of ideas" that is essential to maintaining our individual liberty and ensuring our collective interests. By engaging with challenging ideas and the creative people that make them, we are offered an opportunity to look differently at the world and question our place in it. Without these opportunities, we may never encounter ideas that run contrary to mainstream narrative that is controlled by those who own the primary means of communciation.
"Congress shall make no law... abridging the freedom of speech,..." US Constitution, Amendment 1
What does it mean to have freedom of speech in the United States of America? It is a common misconception to think that the Constitution gives us our rights as human beings. In the Declaration of Independence we are told that our natural rights are given to us by our creator. The constitution simply recognizes some, but not all of our natural rights as human beings.
The Constitution also designs a system of government, known as a Representative Democracy. The main feature of this system of government is that it exists with the express purpose of ensuring the natural rights of all people, but more importantly, to protect the rights of vulnerable classes of persons from oppression by those with more power or influence.
“Without freedom of thought, there can be no such thing as wisdom; and no such thing as public liberty, without freedom of speech.” Benjamin Franklin
Ever since our founding fathers recognized the right of free speech in the First Amendment of the Constitution, we have been engaged in a great experiment to determine what forms of self-expression are so essential to a free society that they deserve the highest levels of protection by and from government.
It is the judicial system, both the Supreme Court and the Lower Courts, that have the challenging task of addressing this question. Freedom of speech or expression is essential to individual liberty and contributes to what the Supreme Court has called the 'marketplace of ideas.' Over the last 250 years there have been numerous rulings associated with the right of free speech. The Supreme Court has heard arguments on cases regarding regulating commercial speech, limiting free speech in schools and many more.
“While not having spoken directly on the protections afforded visual art, the Supreme Court has been clear that the arts and entertainment constitute protected forms of expression under the First Amendment.” White v. City of Sparks, 500 F.3d 953, 955 (9th Cir. 2007)
While not addressed directly by the Supreme Court itself, the lower courts have heard many cases concerning the application of the First Amendment to various forms of artistic self-expression. It has been well settled that artistic expression is protected by the First Amendment, and certain forms of artistic self-expression are to be considered fully protected speech. Further, as a form of fully protected speech, a speaker or artist's rights are not lost simply because they receive money for their fully protected expressive activities.
The question that is answered by the court is not, 'What is art?', but rather, 'What art forms are indistinguishable from pure speech in the sense that they serve no other purpose than to be expressive and as such, rise to the full protection of the First Amendment?' These types of expressions can be referred as 'pure self-expressions' or as being 'purely expressive' and are identified by two essential characteristics. The first characteristic required for an activity to be considered 'pure self-expression' is that it must be the original work of the speaker.
“ So long as it is an artist's self-expression, [it] will be protected under the First Amendment, because it expresses the artist's perspective.” White v. City of Sparks, 500 F.3d 953, 956 (9th Cir. 2007)
The First Amendment protects my right to display someone else's art in public, but with certain limitations. The sale of the art work is certainly not protected activity in this case. Only your original work rises to the full protection of the First Amendment and affords the speaker the freedom to receive money in exchange for or as part of their expressive conduct.
Unlike speech, even in the absence of a clear philosophical or religious message, non-verbal self-expressions such as visual art and music remain fully protected by the First Amendment.
""[T]he 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 Schonberg, or Jabberwocky verse of Lewis Carroll.""
Pure Expression: Art as Speech
The spoken and written words have no other purpose than to be expressive. The lower courts have affirmed on numerous occasions that non-verbal expressions, sometimes referred to as 'symbolic speech', is indistinguishable from pure speech when it too serves no other purpose than to be expressive. This is the second characteristic required for an activity to be considered 'purely expressive'.
"...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."
The courts have listed music, theater, dance, film, painting, sculpture, as just some of the forms of art which meet the standard of serving no practical purpose other that to be expressive. Whether verbal or non-verbal in nature, the courts have referred to this type of expression as, "Art for Art's sake,".
"...paintings, photographs, prints and sculptures, such as those appellants seek to display and sell in public areas...always communicate some idea or concept to those who view it, and as such are entitled to full First Amendment protection."
With the test of functional vs. non-functional, the courts have established a clear distinction between fully protected expressive activities and conduct that, although expressive in nature, serve a dual function and are therefore distinguishable from the essence of pure speech and only receive limited protections. Traditionally, these types of 'functional artistic expressions' are known as crafts. Examples would include, but are not limited to jewelry, clothing, toys and functional pottery.
Money as Speech
"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."
The idea that the First Amendment protects an individual's right to conduct artistic self-expression in public is easy to understand. What most find challenging to accept, is that the exchange of the expression for money is simply an extension of the expressive activity and is also protected by the First Amendment.
"[T]he degree of First Amendment protection is not diminished merely because the [protected expression] is sold rather than given away."
There are a few reasons why the speakers right to be compensated is expressive activity fully protected by the First Amendment. First, it is unconstitutional to deny a speaker the right to be paid for her expressive conduct because it diminishes the expressive output of the speaker.
Second, simply asking for donations or remunerations for your expressive activity is an expression too. One might consider such an expression to be saying something about the importance of public support for the arts or the challenges faced by an artists struggling to live by their passions alone. By prohibiting the exchange of expression for dollars, the state is effectively censoring these or other messages that may be interpreted by someone encountering such an expression.
Finally, the person who is offering to purchase or make a donation is also engaged in a protected form of self-expression. The individual is expressing their approval or support of the speakers message and offer an expression of approval in exchange, that takes the form of remunerations to the speaker. This activity has the effect of furthering the message and contributes to the market place of ideas by allowing the most popular to rise to the top.
“The sale of protected materials is also protected....without the money, the plaintiffs would not have engaged in the protected expressive activity.”
What does it mean to be fully protected by the First Amendment? It means that in order to restrict your rights, especially on public fora, governments must demonstrate a 'significant interest', the regulations must be 'narrowly tailored' to meet a specific goal and equally applied to all persons.
“Any artist's original painting holds potential to "affect public attitudes," by spurring thoughtful reflection in and discussion among its viewers. ”
Any business license or vendor permit code which does not carve out a specific exemption for purely expressive activities is unconstitutional . As violations of both the 1st and 14th Amendments these codes have had the undeniable effect of chilling the natural rights of all people and disproportionately infringing upon the rights of the most disadvantages populations within a community.
Whether a city council person, county commissioner, or other elected official, you most likely did not know that you inherited codes that violate the natural rights of all people. Aside from the negative consequences these ordinances have inflicted on the individual and the broader community, maintaining these codes leaves government bodies vulnerable to litigation that can prove quite costly.
There are even more important considerations for an elected official than the legal necessities or financial consequences. The real question at hand is not just a practical one, but a moral one as well. It is not a question of 'What can we do?', but 'What ought we do?'.
Both the individual and the community suffer when we are denied the ability to hear and to be heard. By approving new codes that give people the permission and ability for public displays of 'pure self-expression' you are giving people the opportunity to discover the trans-formative power of self-expression, the change that can happen when one encounters new concepts that challenge their established world view and the emotional benefits from that results from being affirmed by those who hear, support, or empathize with your message.
Creative and forward thinking civic leaders will see this is an opportunity to be capitalized on, not a problem to be dealt with. And it is not enough to simply remove any explicit prohibitions to these activities from your codes. If you believe in the founding principles of this country, you would be encouraging people to be conducting these activities in your public spaces. You would approve a code that clearly defines our rights. If you believe in American values, you would be gladly opening your parks, sidewalks and other public spaces for individuals to conduct their expressive activities because you, like the courts, recognize it as an essential element in maintaining a free society. Doing so will allow you to take this opportunity to revitalize communities, uplift the human spirit, and strengthen the connections between friends and neighbors.
Are you an Artist looking for information about how you can sell your protected forms of artistic self-expression on traditional public fora? This page will give you the information and resources you need to conduct your constitutionally protected self-expressive activities in a way that is safe and beneficial for you and the general public.
Most ordinances governing our right to display and sell protected forms of artistic expression in the public forum on the books today are unconstitutional. Our model code is intended to be a replacement for out-dated ordinances that have not been revised to meet the new standards set forth by the courts.
Who are the people behind this project and what is up with the golden apple? Answers to those questions and so many more might be found here. But you have to look.