Two groups filed amicus curiae (“friend of the court”) briefs this week supporting GDHM’s request that the U.S. Supreme Court reverse a decision by the Fifth Circuit Court of Appeals that allowed the City of San Marcos, Texas, to ban any public display of an artwork made from a smashed Oldsmobile 88. 

Local businessman Michael Kleinman commissioned the artwork, which was created by San Marcos artists Scott Wade and Furly Travis.  The artwork was displayed on private property in San Marcos until the Fifth Circuit ruled that only “great works of art” are protected by the First Amendment, and that it was therefore permissible to ban its display anywhere the art car could be seen from any sidewalk, road, or right of way in the city. 

The two amicus briefs agree with Kleinman, Wade and Furly, that all art” enjoys First Amendment protection, not just whatever a court may decide is a “great” work of art. 

One set of amici, led by the Texas Accountants and Lawyers for the Arts, explains that what is now considered great art – such as Cezanne or Matisse’s paintings – was not necessarily recognized as great in its day.  First Amendment protection cannot be based on a court’s evaluation of the quality of a work of art, because such judgments are always subjective, uncertain, and can change over time, the brief argues. 

The second set of amici, led by the Texas Civil Rights Project, argues that US Supreme Court precedent has long protected non-verbal expression such as art, and that the Court has never permitted a judge’s opinion of the “value” of speech or expression to determine the scope of First Amendment protection.  The brief argues that the Fifth Circuit’s “car art” opinion is far afield from precedent from the Supreme Court and other federal courts. 

Other amicus joining the briefs include National Coalition Against Censorship, First Amendment Project, Arthouse at the Jones Center, College Art Association, and numerous individual artists and art historians, including Harrod Blank, Butch Hancock, and Dr. Douglas Nickel of Brown University. 

Thanks go to the lawyers who volunteered their time to write the amicus briefs - David George, Earnest Wotring and Jeffrey Cunard on the TALA brief, and Amy Eikel and Jessie Amos on the TCRP brief.