Junk car or work of art? Supreme Court declines free speech fight.

As any visitor to a museum of modern art may attest, what qualifies as “art” is sometimes in the eye of the beholder.

So what about a wrecked Oldsmobile 88 used as a cactus planter and decorated with murals of local life in San Marcos, Texas?

For shop owner Michael Kleinman the display was both an advertisement and an artistic statement. Mr. Kleinman runs a chain of funky gift and novelty shops and has positioned similar bent-metal masterpieces out front of each. The San Marcos wreck was adorned with the work of two local painters and included the helpful reminder: “make love not war.”

The problem is city officials in San Marcos just weren’t feeling it. To them the Olds 88 looked like just another broken-down car, which put Kleinman in violation of the city’s junked vehicle ordinance.

A local judge ordered the Olds 88 removed. Kleinman sued, claiming the protection of the First Amendment.

The case went to federal court, then to the Fifth US Circuit Court of Appeals.

In an opinion last February, Chief Judge Edith Jones said the US Supreme Court had never directly ruled on the extent of First Amendment protection for “visual non-speech objects or artworks.”

She noted that the court had established that certain forms of art (painting by Jackson Pollock, music of Arnold Shonberg, or Jabberwocky verse of Lewis Carroll) are “unquestionably shielded” by the First Amendment.

But Jones went on to note that the high court was referring “solely to great works of art.”

"Irrespective of the intentions of its creators,” Jones said, “the [Olds 88] car-planter is a utilitarian device, an advertisement, and ultimately a ‘junked vehicle.’ “

Kleinman and his lawyers disagreed. “The First Amendment’s protection of artistic expression is not limited to ‘great works of art’ by famous artists,” they said in their appeal to the US Supreme Court.

"The Fifth Circuit’s opinion invites the very evil it condemns, making judges decide subjectively what art is ‘great’ enough to protect,” wrote Austin, Texas, lawyer Peter Kennedy in his brief.

Kleinman and his lawyers filed their appeal over the summer. On Monday, the Supreme Court announced that it would not hear the case. The justices offered no explanation.

The action leaves the appeals court ruling in place and means that if Kleinman wants to keep the Olds 88 bent-metal masterpiece, he must move the display indoors or behind a high fence.