Planet K ?junked vehicle' battle to reach Supreme Court

Bright colors adorn a painted junk car in front of the Planet K in San Marcos. The store owner went to court in an effort to keep the old vehicle in place, and in September, the Supreme Court will consider whether to hear the case. The car was pounded with sledgehammers at the store's grand opening before two artists painted it. less Bright colors adorn a painted junk car in front of the Planet K in San Marcos. The store owner went to court in an effort to keep the old vehicle in place, and in September, the Supreme Court will consider ... more Image 1 of / 3 Caption Close Planet K ?junked vehicle' battle to reach Supreme Court 1 / 3 Back to Gallery

The U.S. Supreme Court will consider an appeal next month from the owner of Planet K stores over his long-running battle with the city of San Marcos about his right to display an adorned junked vehicle.

In 2007, Michael Kleinman paid two artists to transform a wrecked car in front of his San Marcos store into a painted cactus planter. City officials objected, saying the Oldsmobile 88 was in violation of a city ordinance declaring such displays public nuisances.

Kleinman is appealing a 5th U.S. Circuit Court of Appeals ruling in February that found the car-planter to be “ultimately a junked vehicle.”

Chief Judge Edith Jones wrote that when an artist's work is at best secondary, its public display is subject to reasonable government regulation.

The 5th Circuit also referenced the 1995 Supreme Court decision “Hurley vs. Irish American Gay, Lesbian & Bisexual Group of Boston,” which dealt with the application of the First Amendment to a St. Patrick's Day parade.

While the court said Hurley “unquestionably shielded” artistic expression in such works as a Jackson Pollock painting, or music of Arnold Schonberg or “Jabberwocky” verse of Lewis Carroll, First Amendment protection of expression was limited.

“Hurley refers solely to great works of art,” Jones wrote.

It's that broad statement that's driving Kleinman's appeal. It also has civil liberties groups, particularly those for the arts, joining his fight to have the Supreme Court settle the case. Justices will consider accepting the case during their Sept. 27 conference.

Several organizations are represented in two friend-of-the-court briefs filed in support of Kleinman and artists Scott Wade and John Furly Travis. Among them are the National Coalition Against Censorship, First Amendment Project and Texas Accountants and Lawyers for the Arts.

Ryan Henry, an attorney for San Marcos, said Kleinman's attorneys and his supporters are mischaracterizing the 5th Circuit's ruling in an attempt to make it attractive for the Supreme Court to hear.

“Part of our petition is really letting the Supreme Court see what standards were actually used,” Henry said. “The city believes the standards utilized by the 5th Circuit are the appropriate standards.”

He cited a 1968 Supreme Court decision, “United States vs. O'Brien,” which was used to uphold a city ordinance in Arkansas that forced the removal of a wrecked car from a front lawn. In that case, the father of a son killed in a police chase was displaying the wreckage as a symbolic political protest against the abuse of police authority.

Henry said the city's junked vehicle ordinance is not designed to regulate expression, but to address nuisance and health and safety concerns.

But Kleinman's attorney, Peter Kennedy, said based on the 5th Circuit ruling, the city of San Marcos would be able to ban the car-planter no matter where it was displayed.

“If it was displayed in an art museum and seen from the sidewalk, it would still be banned,” Kennedy said. “Texas State University couldn't display this on the campus, unless they put it inside a building with no windows.”

Since the circuit court ruling, the car-planter with the words “Make Love Not War” has been removed from the San Marcos store.

Kennedy declined to say how much the ongoing legal battle has cost his client.

Meanwhile, he said five or six car-planters remain on display in front of Planet K stores in Austin.

“I don't know why the city of San Marcos feels there's such a horrid danger in these quirky artworks,” Kennedy said.