The Blurred Lines Between Social Media Usage and Intellectual Property Rights Artist Richard Prince selects photos he finds off of Instagram, makes minor manipulations and blows them up, then displays them in galleries and sells them for profit – all…
The late Elie Weisel, who dedicated himself to perpetuating the memory of Holocaust victims, once wrote: “For the survivor who chooses to testify, it is clear: his duty is to bear witness for the dead and for the living.” For the residents of one St. Louis suburb, forgetting is impossible, thanks to their neighbor, Lewis Greenberg, an eccentric septuagenarian and retired art teacher. “I talk, I run my mouth, I make my art,” said Greenberg, “and I go out of my way (that’s part of my business) to spread awareness of the Holocaust.”
Greenberg’s house sits on a corner so his entire yard—front, sides, and rear—is visible from the street. A front yard sign bears the title of Greenberg’s memorial—Holocaust Revisited. Ribbons and rainbow-colored Stars of David hang from his trees. A photo of Auschwitz covers his garage door. The ground is covered with shattered stone tiles, symbolizing the countless lives lost. The barbeque grill has been converted to a crematorium.
Since 1971, Greenberg has been using his yard as his personal art gallery. At first, neighbors appreciated the few metal sculptures. It wasn’t until 2004 that the first signs of war appeared. After his wife divorced him, Greenberg began crafting wooden and plastic sculptures in droves. According to Greenberg, “she was the last obstacle” standing in the way of Holocaust Revisited. According to the neighbors, she was the only thing preventing a plummet in their property values. “For a suburban residential area, this artwork is out of place,” said a real estate agent who lives around the corner. “I think it’s junk,” said another neighbor. “It’s about safety and property values,” said Tim Purviance, Greenberg’s next-door neighbor and former friend. The neighbors eventually called the police and asked the city to establish new ordinances limiting lawn art. Frustrated, Purviance put his house up for sale. But he had to take it off the market after Greenberg’s lawn art turned away buyers. Purviance then circulated a petition demanding the city order the removal of Greenberg’s art. More than 90 percent of the subdivision’s residents signed it.
The city then took Greenberg to court, alleging that the pointed wooden sticks and aluminum sculptures are potentially dangerous to children, and police or firefighters who may need access to the lawn. “This is not about the city trying to regulate art,” argued Ballwin city prosecutor Keith Cheung, “it’s the city trying to protect the safety and welfare of the public. The art is sharp and dangerous.” In response, Greenberg’s attorney, David Howard, countered that under the law, “Greenberg’s art is no different from a resident who puts up Christmas lights, a birdbath or a trellis.” Howard argued that his client’s First Amendment rights prevent the city from removing the art simply because it offends people. “Once you go down that slippery slope, where do you stop?” Howard asked.
In 2009, St. Louis County Associate Circuit Judge Lawrence Permuter convicted Greenberg of two counts of city ordinance violations—littering and storing hazardous materials. Judge Permuter fined Greenberg $500 for each ordinance and ordered him to clean up his yard or face a criminal penalty. Greenberg told the judge “he had no plans to comply.” The judge responded with a 20-day jail sentence.
As wacky as Greenberg’s story is, it isn’t the first of its kind. In 1994, Judith Peck, a sculptor and art professor, placed several sculptures on her front lawn. When she installed an 11-foot high sculpture memorial to the Holocaust, twenty-five neighbors signed a petition requesting the mayor and town council to enjoin the display. But Peck was never charged. She compromised by agreeing to move the sculptures further away from the road.
Clashes between artists and neighbors illustrate a complex debate between property rights and free speech. The Free Speech Clause of the First Amendment provides that “Congress shall make no law…abridging the freedom of speech.” In addition to spoken or written words, the First Amendment also protects “symbolic speech”—conduct intended to communicate a particularized message with a substantial likelihood that the audience would understand that message. Courts have found symbolic speech to include the wearing of black armbands to protest the Vietnam War, flag burning, and even lap dancing. But determining whether conduct is expressive can be like interpreting a Jackson Pollock painting. Fortunately for us, this issue can wait for a future article. For now, most would agree that a homeowner’s front yard can embody a visible statement to neighbors, whether that statement is communicated via a garden gnome or the Star of David.
But just because certain conduct constitutes symbolic speech doesn’t mean it enjoys carte blanche protection. Government may regulate protected speech. Knowing when such regulations pass constitutional muster requires navigating the First Amendment labyrinth—a task even more confusing than finding a clear path through Greenberg’s yard. Furthermore, there is a lack of First Amendment case law on yard art.
Nevertheless, I will attempt to provide a clear, albeit incomplete, picture of the free speech landscape. When the government regulates speech, it does so in one of two ways: (1) by restricting certain content, or (2) by restricting the time, place, or manner of its expression. So free speech analysis generally begins by first asking whether the restriction is content-based or content-neutral. The answer to this question will determine the level of suspicion that a court views a regulation: (1) strict scrutiny for content-based restrictions, or (2) intermediate scrutiny for content-neutral time, place, and manner restrictions.
A content-based restriction is one that discriminates according to a speech’s message, idea, or subject matter. Courts disfavor such restrictions and presume them to be unconstitutional. Content-based restrictions “must be scrutinized more carefully to ensure that communication has not been prohibited ‘merely because public officials disapprove [of] the speaker’s views.’” In order for a regulation to survive strict scrutiny, it must be narrowly tailored to promote a compelling government interest. But if a less restrictive alternative would serve the government’s purpose, the government must use that alternative.
By contrast, a regulation is content-neutral if it limits expression without regard to the content of the message conveyed. Content-neutral regulations are often aimed at regulating the time, place, and manner of expression. Examples include laws that restrict noisy speeches near a hospital, ban billboards in neighborhoods, fix caps on the number of protesters who may use a forum, and prohibit early-morning or late-evening demonstrations. In these situations, courts apply intermediate scrutiny, which requires that the regulation be (1) content-neutral, (2) “narrowly tailored to serve a significant governmental interest,” and (3) it must “leave open ample alternative channels” for communicating the information.
The first prong (content-neutrality) turns on “whether the government has adopted [the] regulation of speech because of disagreement with the message it conveys.” The controlling factor is the government’s purpose or intent. For example, Regan v. Time, Inc. involved the 1981 cover of a Sports Illustrated magazine, which depicted $100 bills falling into a basketball hoop. The federal government alleged that the photograph violated a federal counterfeiting statute, specifically the provision that permitted illustrations of U.S. currency only “for philatelic, numismatic, educational, historical, or newsworthy purposes.” The U.S. Supreme Court held that this provision constituted an impermissible content-based restriction.
The second prong (narrow tailoring) has been watered down since the Supreme Court’s ruling in Ward v. Rock Against Racism, where the Court held that a city could regulate music volume in a park. In Ward, the city did not have to prove that the regulation was the least intrusive means of protecting residents and park visitors from unwanted sound. It was only necessary that the regulation promoted a substantial government interest that would be achieved less effectively otherwise. Problems arise when regulations place broad restraints on expressive activity, such as in Bery v. City of New York, where a city regulation prohibited visual artists from exhibiting or selling their work at public places without a general vendor’s license. The Second Circuit Court of Appeals noted that while the city had a significant interest in keeping public spaces safe and free of congestion, the regulation was not narrowly tailored because of its limited number of licenses (896) and its excessively long waiting list, which made it virtually impossible to obtain a license.
The third prong (alternative channels) requires that the regulation “leave open ample alternative channels for communicating the speaker’s message.” The test is whether the speaker is afforded “a forum that is accessible and where the intended audience is expected to pass.” For example, in City of Ladue v. Gilleo, a St. Louis suburb attempted to stop a homeowner from displaying a window sign protesting the Gulf War. The city passed an ordinance prohibiting homeowners from displaying any signs on their property except “‘residence identification’ signs, ‘for sale’ signs, and signs warning of safety hazards.” The Supreme Court struck down the ordinance, finding that the homeowner’s inability to display signs at home left her with no adequate alternative channels through which she could express her ideas in a cheap and convenient manner. Gilleo was the first case involving a regulation of a property owner’s noncommercial speech on his or her land. Thus, Gilleo has important implications for lawn art. If art is considered speech, Gilleo indicates that outdoor artistic displays on private property may be subject only to reasonable time, place, and manner restrictions.
In addition, First Amendment protection is particularly strong when a property owner engages in speech on private land. As the Gilleo court observed, “A special respect for individual liberty in the home has long been part of our culture and our law….” For example, Nelson v. Streeter was a case involving a student’s controversial painting, entitled Mirth and Girth, which parodied the then-African-American mayor of Chicago, Harold Washington, wearing only a bra, G-string, garter belt, and stockings. During a private exhibition at a gallery, angry city alderman, backed by police, removed the painting. The Seventh Circuit Court of Appeals held that the city violated the student’s First Amendment rights, explaining that because the artwork was displayed in a privately-owned gallery, “officials [had] no more right to enter it uninvited and take the art off its walls than they would have to enter a private home and take ‘offensive’ art off its walls.”
However, there are rare situations where a speaker’s (property owner’s) rights unconstitutionally infringe upon the listener’s rights. Thus, courts will allow regulation of speech when such speech is directed at a “captive audience.” Generally, an audience is “captive” when they are unable to avoid objectionable speech. The captive audience doctrine is seldom applied outside the home, where “the burden normally falls upon” viewers to avoid objectionable conduct. Therefore, a group of residents, who have seen enough of their neighbor’s lawn art, could rely on the “captive” audience doctrine.
Lastly, proponents of aesthetic regulations often point to the goal of preserving property values. The counterargument is that regulating the aesthetics of yards in order to preserve property values is a content-based regulation. The negative effect on property values, if proven, demonstrates that many homebuyers dislike the message conveyed by the speech.
This seems like a straightforward argument until one considers Young v. American Mini Theaters, where the Supreme Court introduced the “secondary effects” doctrine. This doctrine allows a court to characterize a regulation as content-neutral instead of content-based if the regulation is aimed at suppressing the “secondary effects” of the speech—e.g., increased crime, prostitution, and decreased property values—and not the speech itself. In Young, the Court upheld an ordinance prohibiting adult theaters from locating within 500 feet of a residential area, reasoning that the ordinance was motivated by “the city’s interest in preserving the character of its neighborhoods,” not a desire to curtail offensive speech.
In short, the First Amendment provides fertile ground for fascinating and novel legal issues, though there is little guidance in the context of lawn art. In Greenberg’s case, it seems that the city tried to avoid thorny free speech issues by relying on ordinances aimed at litter. The city’s argument concerning safety is plausible—if we imagine a world where neighborhood kids attempt swan dives on sculptures and impale themselves on the Star of David. It’s likely that Greenberg and his neighbors won’t be finding any common ground concerning art. The Torah tells us to love our neighbors. The Bible tells us to love our enemies. In Lewis Greenberg’s case, this is probably because they are one and the same.
by Kenny Geisler