Please note when reading the ruling from the 9th Circuit Court that they list what they consider to be the forms of Artistic Self Expression that gain the full protection of the First Amendment….when they state that they side with their “sister courts” the 6th Cir., the 7th Cir. and the 2nd Cir.. They list: Paintings, Drawings, Sculpture, Photography, Prints, Engraving, Stained Glass “as art for art’s sake”, Music, Dance, Theater, and Films.
The reason why these forms of self expression rise to the full level of protection by the First Amendment and the reason why Artists are NOT Commercial, even when they receive compensation for their Art, is because the Fine Arts are purely expressive, having not functional, utilitarian, or inherent value beyond the message they convey….when they are in the hands of the original creating Artist. When an Artist sells a work of Art to someone else….at the moment after the sale a commercial value has been established and the “RESALE” of that work of Art by another person, gallery, agent, etc. would be considered as a commercial transaction. But the original artist is NOT commercial and does has a Constitutional Right to sell their art or receive compensation for your Rap music on traditional public forums. Not the State of Arizona or any City in this State can make your First Amendment Right to Spontaneous self expression through your art contingent upon a license of any kind. Any license requirement is an Unconstitutional “Prior Restraint” on your right to Freedom of Speech. Also, when Cities and the State exempt non-profit, religious, and political groups from license requirements when they sell their expressive material on public forums they must provide Artistic Citizens with the same exemptions or they are violating the Artist’s 14th Amendment Right to equal protection under law.
It is very important that Artists here in Arizona start learning about their Constitutional Rights as Artists and started standing up for those rights. This State is horrible about violating the rights of all Citizens to participate in the Arts freely in the public parks. Remember….you have a First Amendment RIGHT to sell your music and to receive compensation for your music and that right is not subject to anyone’s license.
Back in the early 1990’s a musician by the name of Perry was arrested on the boardwalk in Venice Beach for selling CD’s of his music without first procuring an L.A. Business License. The case went to the Federal Courts where on Appeal to the 9th Circuit Perry WON. Los Angeles had an exemption in their business license code for Religious, Non-profit, and Political Groups when they sold their expressive materials on public forums…they didn’t have to get a license…and so the 9th ruled that Perry’s First and his 14th Amendment Rights had been violated when he was arrested for selling his music without a license.
By the way, the 9th Circuit Court of Appeals is one step below the U.S. Supreme Court and has jurisdiction over the Island of Guam, Hawaii, Alaska, Washington State, Oregon, Idaho, Montana, California, Nevada and Arizona. Their rulings are binding Federal Law here in Arizona and the State and many of these Cites are violating the Law with their license requirements and requiring Artist to collect sales taxes from the public on sales of their non-commercial protected Speech. The public is being ripped off and Artists are literally being forced into breaking the law and collecting taxes from the public that the State and these AZ Cities have no right to collect.
Not to mention that the AZ League of Cities and Towns Model City Tax Code has a specific exemption from both business and sales tax licenses for Fine Artists who sell their own Art….that does not have a duel purpose both aesthetic and utilitarian/functional. It was written and adopted back in the mid 1980’s and that code complies with the ruling from the 9th Circuit Court in (2007) in the White vs City of Sparks ruling that I won.
Feel free to contact me with any questions.
Please spread the word…………..
Thanks and Good on You,
Steven C. White
Artist / Artist Advocate
Winning ruing in White vs City of Reno, U.S. Fed. District Court for Nev. (2003)
Winning ruling in White vs City of Sparks, U.S. Fed. Court of Appeals for the 9th Circuit and U.S. Supreme Court
Passage of NV. State Assembly Bill 351, “Art in the Parks Bill”, signed into law by the Governor (2005).