dissenting:
The majority would deny standing to every artist whose commissioned work was suppressed by the state. I believe Burke does possess standing to challenge Charleston’s historic preservation ordinance. He was commissioned to paint a mural on the exteri- or wall of a building in historic downtown Charleston. Charleston’s Board of Architectural Review (“BAR”) learned of the project and, pursuant to the preservation ordinance, directed Burke to stop work on his mural. The owner of the building applied to BAR for a permit that would allow completion of the work. Burke agreed to cover the unfinished mural with plywood pending BAR’s decision. BAR eventually denied the permit application on the ground that the mural was aesthetically incompatible with Charleston’s historic district. Because display is not permitted, Burke’s mural remains under plywood.
This course of events unequivocally gives Burke standing to challenge the city ordinance. Because of the ordinance, Burke has suffered the concrete injury of having to stop work and board up his mural, shielding it from view. An order from this court invalidating the ordinance that keeps the mural under plywood would certainly redress this injury. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351 (1992) (outlining injury, causation and redressability requirements). The district court even identified another concrete economic opportunity that Burke lost by virtue of the Charleston ordinance. Burke v. City of Charleston, 893 F.Supp. 589, 604 (D.S.C.1995). Moreover, artists receive future commissions precisely because their work is seen and displayed and admired, which Burke’s cannot be so long as his mural remains under wraps.
But of course a plaintiff need not even suffer economic injury in order to protest the suppression of speech by the state. Plaintiffs protesting infringement of intellectual property interests by another private party often advance allegations of economic loss. See 15 U.S.C. § 1117 (trademark); 17 U.S.C. § 107 (copyright); 35 U.S.C. § 284 (patent). By contrast, plaintiffs asserting First Amendment challenges to state action have relied upon the intrinsic value of speech in *408count less cases where no economic interest was at stake. See, e.g., McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995) (invalidating ban on anonymous campaign literature as violative of First Amendment); City of Ladue v. Gilleo, 512 U.S. 43, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994) (invalidating broad municipal ban on residential signs that prohibited resident from displaying anti-war sign in window of her home). Burke’s standing is firmly grounded- on just such an intangible, but no less legally cognizable, interest.
The majority holds that artists have no First Amendment rights once they sell their work. The majority says this is so because only the owner then has the right to display the art. Display of a piece of art may well be “speech” by its owner, as the majority suggests, but I am unwilling to hold that it wholly ceases to be speech by the artist the second it is sold. In fact, “[i]t 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.” Riley v. National Fed’n of the Blind, 487 U.S. 781, 801, 108 S.Ct. 2667, 2680, 101 L.Ed.2d 669 (1988). In reality an audience, a paying audience, is the lifeblood of any artist, and it is the rare artist who can sustain his craft without selling many, if not most, of his works. The majority’s approach thus has the practical effect of leaving most artists with little protection against government suppression of their speech. This is a sad fate for those whose creative efforts make paintings possible.
The majority makes much of the indisputable fact that the owner may freely raze the building (and the mural painted thereon) for any reason. But two critical facts distinguish the rights of the owner from the powers of the government. First, the city does not stand in the shoes of the building owner visa-vis the mural because the government has not bought and paid for the owner’s right to dispose of the mural. Therefore the'majority’s reliance on Serra v. United States Gen. Seros. Admin., 847 F.2d 1045 (2d Cir.1988), is misplaced. Unlike in Serra, the government has not purchased the art at issue here. Second, and more fundamentally; there is a world of difference between private conduct that suppresses speech and state action that has the same effect — it is the latter that implicates the fundamental protections of the First Amendment. To equate the waiver of property rights with the waiver of constitutional rights against the government is to obliterate a critical distinction in constitutional law.
Both parties present able arguments directed at the merits of Burke’s First Amendment challenge. Burke asserts a core First Amendment interest in artistic speech. Charleston counters with its interest in maintaining the aesthetic integrity of its historic district and the related interests of protecting property values and promoting tourism. Those arguments deserve to be addressed by this court just as they were by the district court. Though I express no view on the constitutionality of Charleston’s historic preservation ordinance, I cannot accept the majority’s denial of standing. The restrictive rule of standing imposed upon this artist ill befits the Constitution’s concern for free expression and speech. Secretary of State of Maryland v. J.H. Munson Co., Inc., 467 U.S. 947, 956, 104 S.Ct. 2839, 2846-47, 81 L.Ed.2d 786 (1984). This case is most straightforward- — an artist is simply protesting the suppression of his work by the state. Under the majority rule, if the state boarded up the ceiling of the Sistine Chapel, Michelangelo could not contest the action in court.