The right to free expression and the right to earn a living go hand in hand.
Entrepreneurship allows creatives to reject the stereotype of the starving artist by turning their artistic talent into a financially viable career. So when the government restricts the right of entrepreneurs to freely express themselves through art, it also restricts their ability to financially support themselves by selling the fruits of their labor, such as jewelry, painted art, or music.
Peggy Fontenaut is an artist and a member of Virginia’s Patawomeck Tribe. Inspired by her lineage, Peggy has made a career of selling American Indian photography, along with handmade jewelry and cultural items.
For 30 years, she has attended art festivals across the country, showing and selling her unique creations. But her work came to a standstill when she encountered a problem in Oklahoma. Some politically connected tribes in Oklahoma complained to state legislators that Peggy shouldn’t be calling her art “American Indian-made.”
The Patawomeck tribe, while recognized in Virginia, is not federally recognized. The tribes were asking the state to change the definition of “Indian tribe” to refer only to those with federal recognition, thus preventing Peggy from associating herself, or her art, with American Indian culture.
The tribes insisted that the definition needed to be changed to prevent artists from fraudulently marketing their art as American Indian-made if they did not belong to a federally recognized tribe. But by preventing Peggy, who comes from a state-recognized tribe, from truthfully describing her art, Oklahoma was forcing her to lie and barred her from participating in the state’s American Indian art market. She earns a living from her American Indian art, something she cannot do if she is censored.
Peggy teamed up with PLF and fought back against Oklahoma in defense of her 1st Amendment rights. The district court ruled in Peggy’s favor and upheld her right to truthfully market her products and earn a living.
Tony Barilla is an exceptionally talented musician. In addition to playing in a three-accordion cover band, he writes, composes, and produces music for theater, short films, dance, and radio. He regularly writes and records music for the nationally syndicated NPR podcast, This American Life.
He is also a big believer in merging his talents with entrepreneurship. When he isn’t working on other projects, he busks on the streets of his hometown of Houston, Texas.
For years, Houston had strict restrictions on busking, outlawing it everywhere in the city except for a small area called the Theater District. Even if a performer busked only in that small designated area, they weren’t allowed to collect tips unless they first completed a burdensome permit process, which included getting written permission from nearby property owners.
Street music is so exhilarating because of its spontaneity. You don’t plan for it or buy tickets. One minute you’re strolling down the street and the next you’re met with talented artists honing their craft and making a little money through tips.
Nothing kills the mood of spontaneous joy like government bureaucracy. And in this case, it also kills the 1st Amendment.
The government cannot restrict Tony’s freedom of expression by eliminating his financial incentive to perform. Nor can the government restrict speech based on content—that is, people can’t use the government to shut down speech that they simply don’t like that’s on public property.
Tony worked with PLF and came out victorious when a federal district court held Houston’s ban on busking unconstitutional.
Brad and Kay Smith run Tilt Vision Art, a multi-faceted business where they sell original artwork and create one-of-a-kind murals for residential and commercial clients. After moving to the small town of Waller, Texas, they secured a contract with a real estate development and construction firm to paint 13 murals on commercial buildings around town.
But when a resident complained that they did not like the murals and found the colors “too bright,” the city council passed a regulation banning the creation of new murals, causing Brad and Kay to lose their contract after completing just three murals. With PLF’s help, Brad and Kay are fighting back.
Aside from threatening Brad’s financial livelihood, there is something else that is particularly absurd about Waller’s ban on murals; it goes against the economic interests of the entire town.
Brad and Kay like to use their work to further the goal of what they call “art-based economic development.”
Fresh out of art school in Chicago, Brad returned to his hometown of Deep Ellum, Texas, only to find himself missing the colorful murals he was surrounded by in the Windy City. He wanted to fill his hometown with the same mural art he had loved so much in school.
His murals sparked the creation of a cultural art district in Deep Ellum, which sparked something else as a result. The murals were so popular, they began attracting new businesses to the neighborhood. In fact, Vanilla Ice even came to Deep Ellum to film his popular “Ice, Ice Baby” music video in front of one of Brad’s murals.
Brad began to wonder if he could replicate this phenomenon elsewhere and began to plant artistic seeds in nearby Dallas.
Where the murals went up, businesses followed and eventually dozens and dozens of new restaurants and bars were opening up around the Dallas murals. Within five years, Brad had made such a positive impact in Dallas, the mayor was begging him to keep up the good work.
As Brad explained: “They were asking us, can we change the roads? We had them put streetlights all in to redo this whole neighborhood. And now Uber has their headquarters there and it’s a really big deal.”
Brad also did the first murals in Fort Worth’s Near Southside, which resulted in letters of recommendation from Near Southside, whose officials explicitly credit Brad and his murals for making it the largest and most successful cultural arts district in Texas. Brad’s art also did wonders for the City of Burleson, where the head of the economic development division credits him for revitalizing their downtown—which subsequently underwent an economic boom.
It’s hard to be angry at economic growth, especially in small towns. But by banning Tilt Vision from making money in Waller, the city council is also prohibiting itself and its residents from economic opportunities that could benefit the entire town.
Violating the 1st Amendment all too often stifles economic growth and opportunity. Unfortunately, courts have a much stronger track record protecting speech than they do economic liberty, but artists like Peggy, Tony, and Brad have a very important and unique opportunity to protect both at the same time. And Pacific Legal Foundation is here to fight relentlessly by their side.
When expression is protected, economic value is created and sometimes the world even becomes more beautiful as a result.