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Planet K makes stab at San Marcos ordinance after SCOTUS snub


Sonya Harvey

The Supreme Court is showing no love for South Texas in another case of free speech woe, this time refusing to consider the immemorial question: “Is it junk or is it art?”

In February, a three-judge panel at the 5th U.S. Circuit Court of Appeals in New Orleans rejected Planet K owner Michael Kleinman’s plea to overturn a previous decision upholding San Marcos’ junked vehicle ordinance, which ruled that a junked vehicle is not necessary art. On Monday, the Supreme Court decided not to hear the case.

The vehicle in question, an ’88 Oldsmobile converted into a cactus planter and covered in painted slogans of “Make Love, Not War” during an advertising ploy, sat in front of Kleinman’s San Macros location for roughly three years until the city had it removed in April after a lengthy free-speech standoff. “We’re extremely disappointed that the court upheld that only great works of art are protected under the First Amendment,” San Marcos Planet K Manager Joe Ptak said. “Does that mean only great speech is protected? If that’s true, we’re all in trouble.”

The city ordinance in question forbids junk vehicles to be placed or remain on public or private property. Misdemeanor offenders net themselves fines of up to $200, the total growing daily. “Nobody wants to live next to the neighbor with the car up on blocks,” Michael Cosentino, San Marcos City Attorney said.

While a local judge ordered the vehicle removed, Kleinman claimed the vehicle was his exercise in Constitutionally protected Free Speech, landing the whole shebang in federal court where the question then became whether undistinguished “works of art” are protected under the First Amendment.

“The Federal Court decided that junk vehicles aren’t designed for free-speech rights, and if we were to allow them to be used for canvases how can we deny one message and approve another?” Cosentino said. “The next thing you know, we’d have ‘Bloods and Crips rule’ painted on vehicles.”

The case has garnered the attention of the National Coalition Against Censorship, First Amendment Project, and Texas Accountants and Lawyers for the Arts who back  Kleinman’s free-speech stance and decry the Supreme Court dis. “The First Amendment’s protection of artistic expression is not limited to ‘great works of art’ by famous artists,” Kleinman and his lawyers said in their appeal to the US Supreme Court.

The ruling comes from the same court that rejected San Antonio Free Speech Coalition’s fight against San Anto’s city ordinance requiring fees to march in the streets.

Still, Ptak and free speech enthusiasts aren’t giving up. “We’ve submitted a proposed ordinance allowing for modifications like advertising to the city that would provide a defense to the junk vehicle ordinance and if that doesn’t work we’ll get petitions to allow for a vote,” Ptak said.

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