FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVEN C. WHITE,  No. 05-15582

Plaintiff-Appellee, D.C. No.

v.  CV-03-00251-

CITY OF SPARKS DWH/RAM

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the District of Nevada

David W. Hagen, District Judge, Presiding

Argued and Submitted

February 16, 2007—San Francisco, California

Filed August 29, 2007

Before: Betty B. Fletcher and Richard R. Clifton,

Circuit Judges, and Edward F. Shea,* District Judge.

Opinion by Judge B. Fletcher

*The Honorable Edward F. Shea, United States District Judge for the

Eastern District of Washington, sitting by designation. 

10871
COUNSEL

Thomas F. Riley, Senior Assistant City Attorney, Sparks,

Nevada, for the defendant-appellant. 

Terri Keyser-Cooper (argued), Law Office of Terri KeyserCooper, Reno, Nevada, and Diane K. Vaillancourt (briefed),

Law Office of Diane K. Vaillancourt, Santa Cruz, California,

for the plaintiff-appellee. 

OPINION

B. FLETCHER, Circuit Judge: 

This appeal presents the question of what protection the

First Amendment extends to the sale by an artist of his paintings. We hold that an artist’s sale of his original artwork constitutes speech protected under the First Amendment. 

WHITE v. CITY OF SPARKS 10873
I.

Appellee Steven C. White (“White”) is an itinerant artist

who earns a living by setting up an easel on a city’s sidewalks

and in parks and selling his paintings to passersby who take

an interest in his work. A painter of nature scenes, White

believes his paintings convey, among other messages, the

message that human beings are driving their spiritual brothers

and sisters, the animals, into extinction. 

The city of Sparks, Nevada (“Sparks”) prohibits the sale of

merchandise in its parks and limits sales in the redevelopment

area known as Victorian Square to those vendors having permits under Sparks Municipal Code §§ 5.59 et seq. For those

without vendor’s permits, Sparks makes a limited exception

allowing the display of merchandise in its parks and Victorian

Square as well as the sale (in both places) of items that have

received the pre-approval of city employees through a First

Amendment exception to the vendor-permitting ordinances

(“First Amendment exception” or “pre-approval policy”).

According to the city, to gain such preapproval an item must

be submitted to the city and determined by city officials to

convey an express or obvious religious, political, philosophical, or ideological message under Gaudiya Vaishnava Society

v. City and County of San Francisco, 952 F.2d 1059, 1063

(9th Cir. 1990) (extending First Amendment protection to

“the sale of merchandise which carries or constitutes a political, religious, philosophical or ideological message”).1

White brought a facial challenge to Sparks’s vendorpermitting scheme. He then moved for summary judgment on

the question of whether he may sell his paintings on the same

1The city has presented no evidence confirming the existence of this

First Amendment exception except for the representations of counsel

before this court and before the district court. However, because the city

has conceded the exception, we, like the district court, will presume the

existence of the policy. 

10874 WHITE v. CITY OF SPARKS
basis as he may display them, i.e., free of restraint. The city

opposed on the ground that White’s paintings are unprotected

by the First Amendment because they do not patently express

a religious, ideological, political, or philosophical message. 

Agreeing for the most part with White and reading Gaudiya

broadly, the district court granted White’s motions2 to the

extent he requested a ruling that his paintings expressed a

message warranting First Amendment protection. To the

extent White requested a global ruling that all visual art is per

se constitutionally protected, the district court declined to

extend its ruling beyond protection of White’s paintings.

Finally, the district court concluded that Sparks’s preapproval policy constituted an unconstitutional prior restraint

because it failed to include objective criteria for approving or

rejecting a piece of artwork. Sparks appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291.3

II.

We review de novo a district court’s grant of partial summary judgment, United States v. $100,348.00 in U.S. Currency, 354 F.3d 1110, 1116 (9th Cir. 2004), and may affirm

on any ground supported by the record, Venetian Casino

Resort v. Local Joint Executive Bd. of Las Vegas, 257 F.3d

937, 941 (9th Cir. 2001). After “viewing the evidence in the

light most favorable to the nonmoving party,” we determine

“whether there are any genuine issues of material fact and

whether the district court correctly applied the relevant substantive law.” Am. Civil Liberties Union of Nev. v. City of Las

Vegas, 333 F.3d 1092, 1097 (9th Cir. 2003). 

2White filed separate motions for the city’s parks and for Victorian

Square. As they present the same First Amendment question, we analyze

the motions together. 

3The district court’s partial grant of summary judgment and denial of

the rest constituted a final judgment in this case, as all other claims have

been resolved. Sparks appeals the partial grant. White does not appeal the

partial denial. 

WHITE v. CITY OF SPARKS 10875
III.

The parties argue over law, not fact. To that extent, summary judgment is appropriate because no genuine issue of

material fact existed. We therefore turn to the question of

whether the district court “correctly applied the relevant substantive law.” Id. at 1097. 

A.

Sparks argues that the First Amendment protects the sale of

paintings in public fora only if the paintings convey an

explicit—or an implicit but obvious—message that fits into

one of the categories we established in Gaudiya. We disagree.

[1] In Gaudiya, we held that First Amendment protection

extended to the “sale of merchandise which is inextricably

intertwined with a statement carrying a religious, political,

philosophical or ideological message.” 952 F.2d at 1066. The

merchandise at issue in Gaudiya—clothing, jewelry, and

stuffed animals sold as fundraisers by charities and advocacy

groups—lacked inherent expressive value and gained expressive value only from its sale being “inextricably intertwined”

with pure speech. Id. at 1064. To the extent that visual art is

inherently expressive, the Gaudiya test is inapplicable. 

[2] While not having spoken directly on the protections

afforded visual art, the Supreme Court has been clear that the

arts and entertainment constitute protected forms of expression under the First Amendment. See Ward v. Rock Against

Racism, 491 U.S. 781, 790 (1989) (music without words);

Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65-66

(1981) (dance); Se. Promotions, Ltd. v. Conrad, 420 U.S. 546

(1975) (theatre); Doran v. Salem Inn, Inc., 422 U.S. 922, 932-

34 (1975) (topless dancing); Miller v. California, 413 U.S. 15,

34-35 (1973) (serious artistic work, unless obscene in the

legal sense); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495,

501-02 (1952) (movies). 

10876 WHITE v. CITY OF SPARKS
[3] Against this backdrop, it is clear that White’s selfexpression through painting constitutes expression protected

by the First Amendment. In painting, an artist conveys his

sense of form, topic, and perspective. A painting may express

a clear social position, as with Picasso’s condemnation of the

horrors of war in Guernica, or may express the artist’s vision

of movement and color, as with “the unquestionably shielded

painting of Jackson Pollock.” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 569 (1995).

Any artist’s original painting holds potential to “affect public

attitudes,” Joseph Burstyn, Inc., 343 U.S. at 501, by spurring

thoughtful reflection in and discussion among its viewers. So

long as it is an artist’s self-expression, a painting will be protected under the First Amendment, because it expresses the

artist’s perspective.4

In holding that the First Amendment protects an artist’s

original paintings, we join two of our sister circuits. See ETW

Corp. v. Jireh Pub., Inc., 332 F.3d 915, 924 (6th Cir. 2003)

(holding that “[t]he protection of the First Amendment . . .

includes . . . music, pictures, films, photographs, paintings,

drawings, engravings, prints, and sculptures”); Bery v. City of

New York, 97 F.3d 689, 696 (2d Cir. 1996) (“[P]aintings, photographs, prints and sculptures . . . always communicate some

idea or concept to those who view it, and as such are entitled

to full First Amendment protection.”); see also Piarowski v.

Ill. Cmty Coll. Dist. 515, 759 F.2d 625, 628-32 (7th Cir.

1985) (holding that stained glass windows, as “art for art’s

sake,” were protected under the First Amendment). 

The city’s argument that the message conveyed must be

either explicit or implicit but obvious in order to merit protec4We expressly reserve the question whether all paintings merit First

Amendment protection. We are not asked to decide the protection

accorded to paintings that are copies of another artist’s work or paintings

done in an art factory setting where the works are mass-produced by the

artist or others. 

WHITE v. CITY OF SPARKS 10877
tion must fail. As the Court has explained, “a narrow, succinctly articulable message is not a condition of constitutional

protection, which if confined to expressions conveying a particularized message would never reach the unquestionably

shielded painting of Jackson Pollock, music of Arnold

Schöenberg, or Jabberwocky verse of Lewis Carroll.” Hurley,

515 U.S. at 569 (internal quotation marks and citation omitted). 

Nor are we convinced by the city’s argument that White’s

sale of his paintings removes them from the ambit of protected expression. “[T]he degree of First Amendment protection is not diminished merely because the [protected

expression] is sold rather than given away.” City of Lakewood

v. Plain Dealer Pub. Co., 486 U.S. 750, 756 n.5 (1988); see

also Riley v. Nat’l Fed’n of the Blind of N. C., 487 U.S. 781,

801 (1988) (“It is well settled that a speaker’s rights are not

lost merely because compensation is received; a speaker is no

less a speaker because he or she is paid to speak.”); Village

of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620,

633 (1980). 

Finally, even purely commercial speech is entitled to significant First Amendment protection. See Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457, 480-81 (1997); City

of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 421-

23 (1993); Va. Bd. of Pharmacy v. Va. Citizens Consumer

Council, Inc., 425 U.S. 748, 762 (1976). Purely commercial

speech is “speech which does ‘no more than propose a commercial transaction.’ ” Virginia Bd. of Pharmacy, 425 U.S. at

762 (quoting Pittsburgh Press Co. v. Pittsburgh Comm’n on

Human Relations, 413 U.S. 376, 385 (1973)). White’s paintings, which communicate his vision of the sanctity of nature,

do more than propose a commercial transaction and therefore

are not commercial speech. 

[4] In sum, we agree with the district court that the city

applied the wrong First Amendment standard in its First

10878 WHITE v. CITY OF SPARKS
Amendment exception to its vendor-permitting policy and

hold that an artist’s sale of his original paintings is entitled to

First Amendment protection.5

B.

[5] Sparks contends that the district court, in ruling that

White’s paintings were protected under the First Amendment,

usurped the city’s authority to make that determination in the

first instance. This argument ignores our tripartite structure of

both state and federal government. While the executive

branch must both interpret and apply the law, that authority

does not strip the judiciary of its authority to review laws at

issue in cases properly before it to determine, for example,

whether they impermissibly tread on First Amendment rights.

See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)

(“It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it.”); see also

Gaudiya, 952 F.2d at 1065 (ruling, in a facial challenge to an

ordinance, that the merchandise at issue was protected). 

C.

[6] Finally, Sparks argues that White lacks standing to challenge the city’s permitting scheme because he never submitted his artwork to the city for review. Because Sparks raised

this argument for the first time in its reply brief to this court,

it has waived the argument. See Holland Am. Line Inc. v.

Wrätsilä N. Am., Inc., 485 F.3d 450, 457 (9th Cir. 2007)

(holding that appellant waived an argument by failing to raise

it before the district court).

5Because we set out a materially different First Amendment standard

than that the city had articulated, we do not reach the city’s arguments that

use of a dictionary and common sense to define the Gaudiya categories

sufficiently constrained official discretion to avoid creating a risk of censorship. 

WHITE v. CITY OF SPARKS 10879
IV.

For these reasons, the district court’s grants of partial summary judgment are AFFIRMED.

10880 WHITE v. CITY OF SPARKS