No. - IN THE Supreme Court of the United States. Shawn Spencer, PETITIONER, CARLTON LASSITER, RESPONDENT

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1 No. - IN THE Supreme Court of the United States Shawn Spencer, PETITIONER, v. CARLTON LASSITER, RESPONDENT ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TWELFTH CIRCUIT BRIEF FOR RESPONDENT Team [V] Counsel for the Respondent January 19, 2015 DEPAUL UNIVERSITY COLLEGE OF LAW 2015 NATIONAL CULTURAL HERITAGE LAW MOOT COURT COMPETITION

2 QUESTIONS PRESENTED 1. Weather VARA s grant of a right of integrity to a limited subset of visual artists violates a property owner s First Amendment freedom of speech rights when the artist s right of integrity prevents the landowner from removing from his or her private property a visual artwork commissioned by a predecessor in title. 2. Weather the right of integrity VARA grants to an author of a visual artwork, in allowing said author to prevent the logisticallynecessitated destruction of a visual artwork located on a landowner s private property, impermissibly appropriates that landlord s property rights with respect to control of that parcel of land, and thus constitutes an uncompensated taking in violation of the Fifth Amendment. i

3 TABLE OF CONTENTS QUESTIONS PRESENTED... i TABLE OF AUTHORITIES... iv STATEMENT OF THE CASE...1 I. Procedural History...1 II. Statement of Facts...1 SUMMARY OF ARGUMENT...3 ARGUMENT...6 At issue in the instant case is 17 U.S.C. 106a(a)(3)(b), under which the author of a work of visual art shall have the right to prevent any destruction of a work of recognized statute, and any intentional or grossly negligent destruction of that work is a violation of that right. 17 U.S.C. section 106a(a)(3)(b) (1990). Mr. Lassiter argues that spencer s right under VARA to prevent the removal of a sculpture commissioned by a previous owner from Mr. Lassiter s property violates Mr. Lassiter s rights under the First and Fifth Amendments....8 I. THE VISUAL ARTISITS RIGHTS ACT (VARA) ENCROACHES UPON PRIVATE PROPERTY OWNERS FIRST AMENDMENT RIGHTS TO FREE SPEECH AND IS NOT SUPPORTED BY A SUBSTANTIAL GOVERNMENT INTEREST NARROWLY TAILORED TO ACCOMLISH ITS PURPORTED SOCIETAL OBJECTIVES...8 A. VARA s Requirement That Mr. Lassiter Continue to Display The Blue Pineapple Constitutes Compelled Speech, Thus Triggering The Strict Scrutiny Standard Of Review Applied To First Amendment Violations, Under Which VARA s Infringement On Free Speech Proves to be Unconstitutional ) Compelled speech, which constitutes a violation of the First Amendment, manifests in various forms, and is not limited to cases involving affirmative expression or government-mandated affirmations of specific ideological or political messages ) Where compelled speech is at issue, strict scrutiny analysis must apply, requiring the government interest behind the speech regulation to be compelling and the means of accomplishing that interest narrowly tailored...13 B. Even If VARA s Requirement That Mr. Lassiter Continue To Display The Blue Pineapple Does Not Constitute Compelled ii

4 Speech, And Is Thus Subject Only To Intermediate Level Scrutiny, VARA Fails To Pass Constitutional Muster...17 II. BY ALLOWING AN ARTIST TO PREVENT THE LOGISTICALLY- NECESSITATED DESTRUCTION OF A VISUAL ARTWORK LOCATED ON A LANDOWNER S PRIVATE PROPERTY, VARA FACILITATES AN UNCOMPENSATED TAKING IN VIOLATION OF THE FIFTH AMENDMENT...18 A. The Circuit Court was correct in ruling that an injunction based on VARA s grant of a right of integrity to Spencer would amount to a per se physical taking as prohibited by the 5 th Amendment...20 B. Even if Spencer s VARA-derived injunction does not constitute a physical taking, the lower court was correct to find that VARA operates to affect an uncompensated regulatory taking ) VARA-derived injunction on the removal of the artwork would constitute a complete deprivation of Mr. Lassiter s property value, making it a per se categorical regulatory taking under Lucas v. South Carolina Coastal ) A VARA-derived injunction on the removal of the artwork would constitute an extreme, economically impactful interference with reasonable investment- backed property rights expectations, and thus a noncategorical regulatory taking under Penn Central Transportation Co. v. City of New York...26 C. Even if this is not a physical or regulatory taking under existing precedents, there are significant policy reasons for not issuing Spencer s requested injunction...29 CONCLUSION...30 iii

5 CASES TABLE OF AUTHORITIES 1256 Hertel Ave. Assocs., LLC v. Calloway, 761 F.3d 252, 263 (2014) Am. Pelagic Fishing Co., L.P. v. United States, 49 Fed Cl Armstrong v. United States, 364 U.S. 40, 49 (1960) Axson-Flynn v. Johnson, 356 F.3d 1277 (10 th Cir. 2004) , 11 Bd. of Managers of Soho Int l. Arts Condo. v. City of New York (Soho III), No. 01 Civ. 1226(DAB), 2004 WL at 13* (S.D.N.Y. Sept. 8, 2004)... 14, 17, 19 Bery v. City of New York, 97 F.3d 689, 694 (2d Cir. 1996)... 9 Buckley v. Valeo, 424 U.S. 1, (1976)... 8 Calder v. Bull, 3 U.S. (3 Ball.) 386 (1798) Carter v. Helmsley - Spear, Inc. (Carter I), 861 F. Supp. 303, 313 (S.D.N.Y. 1994)... 23, 24 Carter v. Helmsley-Spear, Inc. (Carter II), 71 F.3d 77, 80 (1995)... 6, 7, 8 Central Hudson Gas & Elec. Corp. v. Public Serv. Comm n, 447 U.S. 557 (1980) Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for Southern California., 113 S. Ct (1993) Hodel v. Irving, 481 U.S. 704 (1987) Huntleigh USA Corp. v. United States, 525 F.3d 1370, 1378 n.2 (2008) Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, Inc., 515 U.S. 557, 569 (1995)... 9 Kaiser Aetna v. United States, 444 U.S. 164 (1979) Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470 (1987) Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537 (2005)... 19, 21 Loretto v. Teleprompter Manhattan Catv Corp., 458 U.S. 419 (1982)... 19, 20, 21 Lucas v. S.C. Coastal Council, 505 U.S (1992)... 19, 25, 26 Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974) , 16 Murdock v. Pennsylvania, 319 U.S.105, 115 (1943)... 9 New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964) Palazzolo v. Rhode Island, 533 U.S. 606 (2001)... 25, 26 Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978) , 26, 27, 28 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922)... 19, 24 People for the Ethical Treatment of Animals v. Giuliani, 105 F. Supp.2d 294, 304 (S.D.N.Y. 2000)... 9 Pruneyard Shopping Center v. Robins, 477 U.S. 74, 97 (1980)... passim Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166 (1872) Riley v. Nat'l Fed'n of Blind, 487 U.S. 781, 798 (1988) Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65 (1981) Serra v. U.S. General Servs. Administration, 847 F.2d 1045, 1048 (2d Cir. 1988) Sherman v. Town of Chester, 752 F.3d 554, 564 (2014) Tahoe-Sierra Pres. Council v. Tahoe Reg l Planning Agency, 535 U.S. 302, 322 (2002)... 19, 20, 21, 22 Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622 (1994) , 14, 15, 17 United States v. Albertini, 472 U.S. 675, 689 (1985) United States v. Causby, 328 U.S. 256 (1946) iv

6 United States v. O'Brien, 391 U.S. 367, 377 (1968) Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989) West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, (1943)... 9, 10, 11, 14 Wooley v. Maynard, 430 U.S. 705, 714 (1977)... 10, 11, 12, 13, 14 Yee v. City of Escondido, 503 U.S. 519 (1992) STATUTES 17 U.S.C. 106A... passim Pub. L. No (tit. VI), , 104 Stat. 5089, , 8 OTHER AUTHORITIES 136 CONG. REC. H Amy M. Adler, Against Moral Rights, 97 Cal. L. Rev. 263, 271 (2009) Country Comparison: Life Expectancy at Birth, CENTRAL INTELLIGENCE AGENCY WORLD FACTBOOK (JAN. 17, 2015), 23 Employed Persons by Detailed Occupation and Age, 2013 Annual Averages, U.S. DEPT. OF LABOR CURRENT POPULATION (JAN. 17, 2015, 2:34 PM), 23 H.R. Rep. No. 514, 101 st Cong., 2d Sess. 7 (1990) JOSEPH L. SAX, PLAYING DARTS WITH A REMBRANDT (2001) Kathryn A. Kelly, Moral Rights and the First Amendment: Putting Honor Before Free Speech?, 11 U. Miami Ent. & Sports L. Rev. 211, 245 (1994) CONSTITUTIONAL PROVISIONS U.S. Constitution, Amendment I... passim U.S. Constitution, Amendment V...passim v

7 STATEMENT OF THE CASE I. Procedural History Petitioner Shawn Spencer, a professional visual artist, filed for an injunction against Carlton Lassiter, owner of a commercial property in downtown DePaulia City, in the United States District Court for the Eastern District of DePaulia. Spencer s suit was based on his rights under the Visual Artists Rights Act of 1990 (VARA). The court granted Spencer an injunction lasting for the duration of Spencer s lifetime that prohibited Mr. Lassiter from removing, modifying, or destroying a work of visual art created by Spencer and installed on Mr. Lassiter s property. Mr. Lassiter appealed the order from the district court in the United States Court of Appeals for the Twelfth Circuit. The Twelfth Circuit reversed the district court s order, vacating the grant of injunctive relief, and finding that VARA impermissibly encroaches upon the rights of private property owners. The Supreme Court of the United States then granted Spencer s petition for writ of certiorari to evaluate whether VARA s grant of a right of integrity to an author of a work of visual art violates the First and Fifth Amendments. II. Statement of Facts The facts of this case are not in dispute. Respondent Carlton Lassiter is a well-known real estate developer based in Wispy Sunny Pines, DePaulia. Mr. Lassiter is the present owner of a commercial property located in downtown DePaulia City. He purchased the property, consisting of a 50-story office building known as the Marlowe and a large courtyard in the front of the building, on June 6, 1989, from its previous owner, Ms. Karen Vick. Sometime in 1984, as part of a large-scale overhaul of the property, Ms. Vick commissioned Petitioner Shawn Spencer to create a work of art to be installed in the newly renovated front courtyard of the property 1. 1 The courtyard is an open area that is not bounded by walls and the parties agree that it cannot be considered a structure or building in any way. 1

8 Spencer is recognized as a multimedia artist whose work has been shown at various galleries, where they can sometimes sell for high prices. While Spencer creates large, outdoor sculptures less frequently than indoor ones, he has created some other large-scale works of art that are displayed in a variety of locations in cities across the United States. Under the agreement Spencer made with Ms. Vick five years prior to Mr. Lassiter s purchase of the Marlowe, Spencer agreed to design and install a large sculpture in the publicly accessible front courtyard. 2 The agreement specified that Spencer would retain title and copyright to the work, but did not grant Spencer any interest in the courtyard itself. There is no evidence of a legal agreement between Spencer and Ms. Vick granting Spencer any form of property rights in any portion of the Marlowe or its courtyard, including the portion of the courtyard on which his sculpture was constructed. The agreement also remained silent as to how long the work was to be installed in the courtyard, and failed to include any provisions regarding removal of the work. The resulting work is an elaborate, three-dimensional abstract bronze sculpture that resembles a pineapple. Over time, the sculpture has acquired a blue patina and is now referred to by some as the Blue Pineapple. 3 The sculpture stands an imposing 50 feet tall and weighs 168 tons. As such, it wholly encompasses a large footprint in the courtyard and a tall column of air above the courtyard floor. It was publicly displayed in the courtyard of the Marlowe for the first time on February 28, 1986, where it was favorably received by the Marlowe s tenants and the DePaulia population. The work remains a known and recognizable feature of the community. 2 Under the agreement Spencer was paid a fee for creating the work. Both parties stipulate that Spencer was not an employee of Vick, but an independent contractor, and that the resulting work is not a work made for hire. 3 Despite the sculpture s nickname, the residents of DePaulia have different ideas about what the work is meant to portray. Some think it resembles a cartoon character, Phineas Flynn, from the cartoon series Phineas and Ferb, while others think it looks like the actor Malcolm McDowell. 2

9 Sometime in 2013, Mr. Lassiter found that the Marlowe and its surrounding property, including the courtyard, needed to be modernized. Mr. Lassiter sought the advice of architecture firm Brannigan & Woody. The firm developed a remodeling plan for the Marlowe and its courtyard. As part of the proposed plan, Brannigan & Woody s top architect, Buzz McNab, told Mr. Lassiter that, in his informed professional opinion, the best option was to remove the Blue Pineapple and completely overhaul the building and courtyard. In an interview with a local paper, Mr. Lassiter discussed his renovation plans, including the removal of the Blue Pineapple permanently from the courtyard. That interview prompted some criticism, and one poll reported that 75% of city residents opposed removal of the sculpture. However, there is no evidence that those polled possess the architectural expertise to evaluate the wisdom of Brannigan and Woody s experienced architects, or Buzz McNab s detailed removal plan. SUMMARY OF ARGUMENT VARA s grant of a right of integrity to Spencer constitutes a violation of Mr. Lassiter s First Amendment right to free speech. Spencer s right of integrity prohibits Mr. Lassiter from removing, and in the process destroying, the Blue Pineapple sculpture that sits in the courtyard of Mr. Lassiter s privately-owned commercial office building despite the fact that a previous owner commissioned the sculpture, which Mr. Lassiter would now like to remove. Thus, under VARA, Mr. Lassiter is forced to display a work of visual art against his will. Because artwork constitutes expression, and Mr. Lassiter is forced to keep the Blue Pineapple on his property, Mr. Lassiter is effectively compelled to speak, thus constituting a violation of his First Amendment right to freedom of speech. Under the First Amendment, the right to refrain from speaking is equally important to the right of affirmative speech. An individual may also not be compelled to disseminate a government ideology he or she does not agree with. Further, the First Amendment 3

10 protects against the forced use of private property as a forum for third party speech. These various forms of compelled speech warrant strict scrutiny, a standard of review reserved for certain regulations on speech. Under strict scrutiny, a speech regulation is constitutional only if the government interest behind the regulation is compelling and the means for accomplishing that interest narrowly tailored. VARA, with its focus on individual artists, rather than society at large, as well as its failure to include all types of artists, rather than just artists who create a subset of visual artwork, fails to narrowly target its purported government interest of preserving public art and artists integrity for the benefit of society. Moreover, even if VARA is evaluated under a lesser degree of scrutiny, known as intermediate scrutiny, it still fails to pass constitutional muster. Under intermediate scrutiny, a speech regulation must further a substantial government interest unrelated to the suppression of free speech and the speech regulation must not burden substantially more speech than is necessary to further that interest. The purported societal interest behind VARA may not be a substantial government interest, but rather, may be better accomplished through private initiatives. Similarly, VARA burdens more speech than necessary, as alternative means for preserving public art and artists integrity are available. VARA s grant of a right of integrity to Spencer effects an uncompensated taking of private property in violation of the 5 th Amendment. The 5 th amendment prohibits government redistribution of private property without just compensation. The rationale for this requirement is usually conceived as a way to honor traditional natural law notions of property rights and engage in loss-spreading, which ensures that society collectively bears the burden of compensating individuals whose property is appropriated for public use. Impermissible takings can arise under three alternative, nonexclusive theories. Taking jurisprudence can be primarily divided into two 4

11 branches, physical (or affirmative ) takings, and regulatory (or negative) takings. Physical takings occur when the government itself takes physical possession of a privately owned resource, while regulatory takings occur when a government prohibits a privately owned resource from being exploited by its owner to an impermissible degree. The latter category can itself be divided into categorical regulatory takings, which occur when no economically beneficial use of the land is permitted, and noncategorical regulatory takings, in which there is something less than a complete elimination of asset value but still a significant restriction on the exploitation of the resource. In this case, VARA s right of integrity allows Spencer to require Mr. Lassiter to keep the artwork in place, creating a physical taking by intruding on Mr. Lassiter s private property without compensation and physically preventing Mr. Lassiter from making alternative, productive use of his own parcel of land. In fact, because the artwork totally encompasses the relatively large area it occupies, it also arguably prevents virtually any economically beneficial use of that property, affecting a categorical regulatory taking. Even if this court finds that the regulatory taking here amounts to less than a total deprivation of value, precedentially-generated ad-hoc rubrics for evaluating the character of regulatory actions would still find this a noncategorical regulatory taking. More specifically, the negative economic impact of so restraining Mr. Lassiter s control of his own property, the degree of interference with the reasonable, investment-backed expectations about potential future use of the property, and the extreme character of a government action that denies several fundamental property rights (such as the the right to exclude ) collectively demonstrate the unconstitutional nature of this action. Moreover, there are a variety of powerful policy reasons to disallow the VARA-backed right of 5

12 integrity from interfering with traditional American property rights, or to make an exception in this particular case. ARGUMENT Spencer s right of integrity under the Visual Rights Act of 1990 (VARA) to prevent the removal of a work of art from Mr. Lassiter s property violates Mr. Lassiter s rights under the First and Fifth Amendments. The Visual Artists Rights Act of 1990 (VARA) became an effective federal law in 1991 as an extension of the copyright statute. Pub. L. No (tit. VI), , 104 Stat. 5089, (codified in various sections of 17 U.S.C.) (1990). Under VARA, certain limited categories of visual artists now enjoy not only the economic rights provided by traditional copyright law, but also non-economic rights designed to preserve artists works and protect their reputation and honor. 17 U.S.C. 106A. These non-economic rights originated predominantly in civil law nations, and are conceived as moral rights, which artists possess by virtue of having imbued their work with their spirit and personality during the work s creation. Carter v. Helmsley-Spear, Inc. (Carter II), 71 F.3d 77, 80 (1995). Statutes granting moral rights, especially those involving the right of attribution and prohibition on modifications, are often justified on defamation grounds. Id. at 81. The rationale is that an artist s success is shaped by his reputation, which is a product of popular perception of the works attributed to him. Giving the artist the ability to protect his works therefore protects the artist. Id. at However, some jurisdictions, including the United States, also grant artists the ability to prevent the destruction of their works. Id. at 81. The rationale for such rights is often tied to the public interest in preserving works of art, but granting individual artists additional rights for the sake of a public benefit is irreconcilable with the traditional defamation- 6

13 based moral rights justifications (as a work that is destroyed cannot reflect poorly on the artist). Id. Until recently, proposals to pass legislation protecting moral rights faced great resistance in the United States. Carter II at 82. In fact, the question of whether to enact federal protection of moral rights became the most contentious issue in the nearly 100 year debate over whether the United States should join the Berne Convention, the international agreement protecting literary and artistic works. Id. Despite a flood of Congressional opposition, the United States finally passed the Berne Convention Implementation Act of Id. at 83. Soon after, in 1990, Congress passed VARA. Id. While artists in the United States now have moral rights under VARA and a variety of state statutes, these rights are not yet ingrained in the average American s judicial understanding and expectations. JOSEPH L. SAX, PLAYING DARTS WITH A REMBRANDT (2001). For example, a local muralist group in Los Angeles won a settlement against Shell Oil Company after Shell bulldozed the wall hosting one of the group s completed murals, apparently unaware that it was required by California law to provide the artists an opportunity to remove the mural. Id. at 27. Similarly, a California artist was awarded $45,000, including attorney s fees, after a twelve-foot sculpture he had installed in a shopping center mysteriously disappeared, to which the property owners erroneously responded that it was their right to do as they pleased with the sculpture. Id. at 33. The terms of VARA itself grant authors of a limited subset of visual artworks two fundamental rights: the right of attribution and the right of integrity. 17 U.S.C. 106A(a) describes the Right of Integrity as the right: (A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation and any intentional distortion, 7

14 mutilation, or modification of that work is a violation of that right. 17 U.S.C. 106A(a)(3)(A) (B) to prevent any destruction of a work of recognized statute, and any intentional or grossly negligent destruction of that work is a violation of that right. 17 U.S.C. section 106A(a)(3)(B) At issue in the instant case is 17 U.S.C. 106a(a)(3)(b), under which the author of a work of visual art shall have the right to prevent any destruction of a work of recognized statute, and any intentional or grossly negligent destruction of that work is a violation of that right. 17 U.S.C. section 106a(a)(3)(b) (1990). Mr. Lassiter argues that spencer s right under VARA to prevent the removal of a sculpture commissioned by a previous owner from Mr. Lassiter s property violates Mr. Lassiter s rights under the First and Fifth Amendments. I. THE VISUAL ARTISITS RIGHTS ACT (VARA) ENCROACHES UPON PRIVATE PROPERTY OWNERS FIRST AMENDMENT RIGHTS TO FREE SPEECH AND IS NOT SUPPORTED BY A SUBSTANTIAL GOVERNMENT INTEREST NARROWLY TAILORED TO ACCOMLISH ITS PURPORTED SOCIETAL OBJECTIVES The Visual Artists Rights Act (VARA) fails to strike the right balance between protecting artistic integrity and upholding First Amendment rights. VARA grants a category of visual artists certain moral rights, but its statutory language lacks explanation as to what types of third-party conduct would constitute a violation of the statute. Pub. L. No (tit. VI), , 104 Stat. 5089, (codified in various sections of 17 U.S. C.) (1990). While Congress passed VARA with the intention of encouraging artistic creation through the preservation of visual artists works and moral rights, its aim was not to do so at any and all costs and without regard for the rights of other individuals. Carter v. Helmsley-Spear, Inc. (Carter II), 71 F.3d 77, 80 (2d Cir. 1995). Under the First Amendment, the government may not restrict the speech of some elements of our society in order to enhance the relative voice of others. Buckley v. Valeo, 424 U.S. 1, (1976). Unfortunately, despite the positive intentions behind VARA, its right 8

15 of integrity provision, particularly 17 U.S.C. 106A(a)(3)(B), does just this by requiring Mr. Lassiter to speak against his will in the name of preserving artistic expression. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, (1943). In addition, as Justice Powell noted, Restrictions on property use are invalid if they infringe the freedom of expression and belief protected by the First and Fourteenth Amendments. Pruneyard Shopping Center v. Robins, 477 U.S. 74, 97 (1980) (Powell, J., concurring in part and in the judgment). Furthermore, the First Amendment, which establishes the fundamental principal that Congress shall make no law abridging the freedom of speech (U.S. CONST. amend. I), has legally occupied a preferred position and has thus received preferential treatment by courts. Murdock v. Pennsylvania, 319 U.S.105, 115 (1943). First Amendment protections are not reserved only for political speech and verbal expression. Bery v. City of New York, 97 F.3d 689, 694 (2d Cir. 1996). On the contrary, artwork is considered "a quintessential form of expression," warranting and requiring protection under the First Amendment. People for the Ethical Treatment of Animals v. Giuliani, 105 F. Supp.2d 294, 304 (S.D.N.Y. 2000) (citing Bery at 696); see also Serra v. U.S. General Servs. Administration, 847 F.2d 1045, 1048 (2d Cir. 1988). To merit First Amendment protections, a work of art need not portray a particularized, narrow message. Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, Inc., 515 U.S. 557, 569 (1995). In fact, because paintings, photographs, prints, and sculptures always communicate some idea or concept to their viewers, they are entitled to full First Amendment protection. Bery at 695 (emphasis added). It is clear that the sculpture occupying a portion of Mr. Lassiter s property constitutes expression, so under the First Amendment, Mr. Lassiter s right to silence or to perpetuate this expression is protected. 9

16 A. VARA s Requirement That Mr. Lassiter Continue to Display The Blue Pineapple Constitutes Compelled Speech, Thus Triggering The Strict Scrutiny Standard Of Review Applied To First Amendment Violations, Under Which VARA s Infringement On Free Speech Proves to be Unconstitutional Mr. Lassiter maintains, as he did below, that by granting a right to Spencer to prevent the destruction of the Blue Pineapple sculpture, VARA prohibits the removal of the sculpture from Mr. Lassiter s land and ultimately compels Mr. Lassiter to speak against his will. This compelled speech, Mr. Lassiter argues, infringes upon his First Amendment rights to free speech, and is thus unconstitutional. 1) Compelled speech, which constitutes a violation of the First Amendment, manifests in various forms, and is not limited to cases involving affirmative expression or government-mandated affirmations of specific ideological or political messages Compelled speech need not consist of active speech, or forced ideological expression, but rather, may occur when an individual is prohibited from remaining silent. West Virginia State Bd. of Educ. v. Barnette; Axson-Flynn v. Johnson, 356 F.3d 1277 (10 th Cir. 2004). [A] system which secures the right to proselytize religious, political, and ideological causes must also guarantee the concomitant right to decline to foster such concepts. Wooley v. Maynard, 430 U.S. 705, 714 (1977) (citing Barnette at ). Freedom of thought against state action is protected by the First Amendment and includes both the right to speak freely and the right to refrain from speaking at all. Id. For example, the Supreme Court held that a Florida right of reply statute requiring a newspaper to print politicians responses to critical articles was a First Amendment violation because it undermined the newspaper editors right to decide not only what to publish, but also what to omit. Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974). The revocation of the right to remain silent is fundamental to the concept of compelled speech and bolsters the notion that compelled speech does not always involve ideological content. Citing 10

17 the holding in Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65 (1981) that entertainment, as well as political and ideological speech, is protected, the 10 th Circuit held that [T]he First Amendment s proscription of compelled speech does not turn on the ideological content of the message that the speaker is being forced to carry. The constitutional harm and what the First Amendment prohibits is being forced to speak rather than to remain silent. Axson-Flynn v. Johnson, 356 F.3d 1277, 1284 (10 th Cir. 2004). Whether the government-mandated continued display of the Blue Pineapple is considered ideologically focused or not, Mr. Lassiter s inability to remain silent by choosing not to display the sculpture constitutes compelled speech. Moreover, VARA can be seen as constructively forcing Mr. Lassiter to speak by compelling him to use his property to disseminate the speech of another, in this case, that of Spencer. Pruneyard Shopping Center v. Robins, 477 U.S. 74, (1980). An individual is compelled to speak when forced to use his or her property to disseminate a message he or she does not agree with. Id. In their concurring opinion in Pruneyard, Justices Powell and White affirm the holding in Wooley v. Maynard and Barnette that the government may not compel a person to affirm a belief he does not agree with and that a property owner must not be compelled to use his property as a forum for the ideas of others. Pruneyard at 96 (Powell, J., concurring in part and in the judgment). Further, Justices Powell and White emphasize that this protection remains in place even in cases where an individual s property is open to the public. Id. Therefore, even if one were to argue that the Marlowe, a large office building housing private tenants, is considered open to the public, Mr. Lassiter s right not to use his property as a forum for the speech of others remains intact. VARA, by disallowing the removal of Spencer s artwork, forces Mr. Lassiter to use his property as a forum for Spencer s speech. Mr. Lassiter is not only compelled to use his property as a forum for Spencer s artistic 11

18 speech, he is also forced to assert the government s view that public art and its creators moral rights are important to our culture. In this sense, Mr. Lassiter is in fact compelled against his will to disseminate a government ideology. When the state s objective is to spread an ideology, no matter how universally accepted, such objective cannot take precedence over an individual s First Amendment right to avoid becoming the courier for such message. Wooley at 717. In a similar fashion to the Congressional action behind VARA, the New Hampshire government required individuals to display on their license plates the state motto, Live Free or Die, in an effort to spread an official message as to the proper appreciation of history, individualism, and state pride. Id. at 716. The court held that while the State was free to make various endeavors to encourage this view, the State could not constitutionally require an individual to participate in the dissemination of an ideological message by displaying it on his private property. Id. at In a similar but distinguishable case, the Supreme Court held that the owner of a commercial shopping center was required to allow high school activists to continue leafleting on the property s premises. Pruneyard Shopping Center v. Robins, 477 U.S. 74 (1980). The Court distinguished the case from Wooley for several reasons. Id. at 87. In Pruneyard, the Court held that the shopping center owner s First Amendment rights were not violated since the views expressed by the high school activists would not likely be identified with those of the owner because the shopping center was an established business open to the public, the property owner could disassociate himself with the messages by posting a sign disavowing any such connection, and the property owner was not being compelled to affirm a belief in any government position or view. Pruneyard at 87. Mr. Lassiter s case, unlike the Pruneyard case, is not distinguishable from Wooley in these ways. First, the Blue Pineapple will most certainly be associated with Mr. 12

19 Lassiter as he is the sole owner of the Marlowe building. Unlike a commercial shopping center, the Marlowe is an office building rented by various professional organizations. The purpose of a shopping center is to sell goods to the public, and thus, the owner will encourage the public s presence as much as possible. An office building, in contrast, provides a degree of privacy and security to its tenants and is typically closed to members of the public not employed by its resident businesses. In fact, the vast majority of office buildings impose strict security requirements upon those entering the building. Further, a permanent art installation on private property carries a different connotation than a group of high school students passing out pamphlets. Those viewing the artwork will associate the work with Mr. Lassiter s personal tastes or will at least assume from its continued presence that Mr. Lassiter agrees with its various meanings and interpretations. Moreover, underlying the continued presence of the artwork is the government belief that public art and its creators moral rights are important to our culture. Finally, Mr. Lassiter cannot realistically post signs on or around the Blue Pineapple disavowing his connection to the sculpture. For these reasons, it is clear that Mr. Lassiter s case resembles that of Wooley and not Pruneyard. 2) Where compelled speech is at issue, strict scrutiny analysis must apply, requiring the government interest behind the speech regulation to be compelling and the means of accomplishing that interest narrowly tailored Where compelled speech is at issue, the impact upon First Amendment rights will be evaluated under a strict scrutiny standard of review to determine whether the government interest motivating the compelled speech is significant enough and narrowly tailored enough to justify an unconstitutional regulation on free speech. Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622 (1994). The degree of scrutiny applied to potential violations of First Amendment rights depends on the type of burden imposed upon the speech at issue. Turner at 637. For example, 13

20 commercial speech and obscenity receive less protection, i.e., are evaluated under a lesser degree of scrutiny, than political or symbolic speech. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm n, 447 U.S. 557 (1980). The highest degree of scrutiny, strict scrutiny, will apply when a regulation on speech suppresses, disadvantages, or imposes differential burdens upon speech because of its content. Turner at 641. Under a strict scrutiny standard of review, the government interest behind a speech regulation must be compelling and the means of accomplishing that interest narrowly tailored. Wooley at ; Bd. of Managers of Soho Int l. Arts Condo. v. City of New York (Soho III), No. 01 Civ. 1226(DAB), 2004 WL at 13* (S.D.N.Y. Sept. 8, 2004). Although VARA is a content-neutral regulation, it is still subject to strict scrutiny because it compels the speech of certain individuals. Strict scrutiny analysis will also apply when speech bearing a particular message is compelled. Turner at 641; Wooley at (noting an extended inquiry into whether the government interest is compelling and the means narrowly tailored). The Supreme Court has held that laws which compel speakers to distribute speech bearing a particular message are subject to the same rigorous strict scrutiny applied to contentbased speech regulations. Turner at 641 (citing Riley v. Nat'l Fed'n of Blind, 487 U.S. 781, 798 (1988) and Barnette at 624, 638, ). Additionally, the Turner opinion suggests that speech regulations that pose such inherent dangers to free expression, or present such potential for censorship or manipulation justify application of the most exacting level of First Amendment scrutiny. Turner at 661 (holding that strict scrutiny need not apply to must-carry cable provisions since the provisions did not pose the inherent risk of undercutting First Amendment interests, and were broadly applied across cable providers, thus eliminating the threat of suppression and manipulation). Unlike the must-carry provisions in Turner, VARA is a 14

21 narrowly targeted regulation that does not affect all property owners, but rather, affects only a small subset of landowners whose properties happen to house a particular sub-category of visual art. Under this reasoning in Turner, VARA should undergo a strict scrutiny standard of review. VARA fails to meet either prong of the strict scrutiny test. First, VARA fails to manifest a substantial government interest. Behind VARA lie three important government goals: protecting the honor and reputation of visual artists; protecting works of art themselves for the sake of the public interest; and establishing a national standard for the protection of moral rights. 136 CONG. REC. H3113 (daily ed. June 5, 1990) (statement of Rep. Kastenmeier). The purpose behind moral rights (rights of attribution and integrity ) is that they highlight artistic worth and honor and encourage artists in the act of creation. H.R. Rep. No. 514, 101 st Cong., 2d Sess. 7 (1990) at 5, reprinted in 1990 U.S.C.C.A.N. 6915, While at first glance these goals appear to be substantially valuable to the cultural heritage of society, VARA s narrow scope severely undercuts its purported government interests. Section 106A of VARA only applies to visual artists and a defined subset of visual works of art, rather than to authors of all forms of art. 17 U.S.C. 106A(b). Second, VARA clearly focuses on the artist s individual rights, rather than the broader societal interests. Only the artist as an individual can enforce or waive his or her right of integrity, and the artist s rights under VARA last only during the author s lifetime. 17 U.S.C. 106A(b); 17 U.S.C. 106A(d); 17 U.S.C. 106A(e). As one scholar pointed out, the law should not assume that the artist s interests will align with the public interest. Amy M. Adler, Against Moral Rights, 97 Cal. L. Rev. 263, 271 (2009). For example, the artist as an individual always has the right to destroy his or her work, even if the work is of recognized stature, and is thus presumably valued by the public. Id. at

22 VARA also fails prong two of the strict scrutiny test in that it is not narrowly tailored to achieve its supposed compelling government interest. The practical application of VARA in protecting only a limited type of artist and artistic works, and for only the duration of the artist s lifetime, is not conducive to the regulation s goal of preserving artistic integrity and reputation. As one scholar notes, it seems that if the interest in artists reputations was so important, Congress would have extended standing to other groups and would have given perpetual protection to moral rights (or at least for a period after the artist s death). Kathryn A. Kelly, Moral Rights and the First Amendment: Putting Honor Before Free Speech?, 11 U. Miami Ent. & Sports L. Rev. 211, 245 (1994). Furthermore, the VARA statute is both over and under inclusive. It is over-inclusive in that it may jeopardize First Amendment rights, and it is underinclusive in that only a narrow category of artists are covered. Moreover, besides not being narrowly tailored to achieve its objectives, VARA may in fact cut directly against the interest of encouraging artistic creation and appreciation. By forcing a landowner such as Mr. Lassiter to continue displaying a work of art on his property for the lifetime of the artist, VARA may actually deter property owners from commissioning and installing works of art on their land out of fear of future repercussions. Property owners may choose not to commission art in order to avoid restrictions on not only their own right to later remove or replace the art, but also on potential future buyers who may be reluctant to purchase a property containing a permanent art installation. In Miami Herald Pub. Co. v. Tornillo, the Court expressed a similar concern, holding that a Florida statute requiring a newspaper to print political candidate s responses to criticism would [dampen] the vigor and [limit] the variety of public debate by discouraging editors from publishing controversial political statements that might trigger regulation by the statute. Id. at 257 (citing New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964)). Rather than 16

23 promoting the value of public art preservation and artistic integrity, VARA may in reality discourage its existence. B. Even If VARA s Requirement That Mr. Lassiter Continue To Display The Blue Pineapple Does Not Constitute Compelled Speech, And Is Thus Subject Only To Intermediate Level Scrutiny, VARA Fails To Pass Constitutional Muster Even if, as the dissent advocates, VARA is evaluated under the less stringent level of scrutiny that applies to content-neutral regulations (Turner at 641) VARA still infringes upon private property owners First Amendment rights. Intermediate scrutiny differs from strict scrutiny in degree, but still examines the merits of the government interest behind a speech regulation. Under intermediate scrutiny, the regulation must further an important or substantial governmental interest unrelated to the suppression of free speech and the resulting restrictions on speech must not burden substantially more speech than is necessary to further those interests. Soho III at *14-*15 (citing United States v. O'Brien, 391 U.S. 367, 377 (1968)). While VARA s stated purpose of protecting society s interest in public art is something society may want to support, it is not at all clear that this constitutes a substantial or important government interest. This interest may be better promoted by private initiatives, and relative to other government interests, including the protection of free speech, may not be considered substantial. Further, VARA s resulting regulation on speech may not further a substantial interest when one considers the very limited scope of VARA in only protecting a narrow category of artistic works. In addition to failing to promote a substantial government interest, VARA burdens substantially more speech than necessary, as there are alternative approaches to the promotion of public art. For a speech regulation to survive intermediate level scrutiny, the government must show that their interest would be achieved less effectively absent the regulation. Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989) (quoting United States v. Albertini, 472 U.S. 675,

24 (1985)). As noted above, there may be private remedies available to encourage property owners to install and preserve public art that could achieve VARA s stated goals without infringing upon the rights of private citizens. For example, the government could issue stipends to incentive private property owners to commission works of public art, or statutorily create the ability to donate conservation easements for the preservation of public art. Alternatively, VARA could be amended to address its vagueness. For example, the statute provides no guidance as to which types of activities or actors violate its provisions. In its current form, the VARA statute makes no exception for the first amendment rights of private citizens, and lacks consideration of the various repercussions of its regulations. VARA fails to properly balance the competing interests between protecting artistic integrity and protecting the rights of private property owners. As such, VARA violates Mr. Lassiter s First Amendment rights without just cause and is unconstitutional. II. BY ALLOWING AN ARTIST TO PREVENT THE LOGISTICALLY-NECESSITATED DESTRUCTION OF A VISUAL ARTWORK LOCATED ON A LANDOWNER S PRIVATE PROPERTY, VARA FACILITATES AN UNCOMPENSATED TAKING IN VIOLATION OF THE FIFTH AMENDMENT VARA s grant of a Right of Integrity to Spencer effects an uncompensated taking of private property in violation of the 5 th Amendment. (R. at 13). It is important to reiterate that what is at issue here is not Spencer s rights regarding the artwork itself. It is agreed by the parties that Spencer retains ownership of the artwork, and we know nothing of Lassiter s personal feelings towards the object. (R. at 3). What is at issue is Spencer s claimed right to assert control over a portion of Lassiter s land by virtue of having grafted an artwork onto a portion of that land during the tenure of a previous landowner. Control of the land is at issue, and a large body of constitutional jurisprudence confirms that allowing Spencer to assert control over Lassiter s 18

25 private property in this way would affect an uncompensated taking in violation of the Constitution. This line of jurisprudence falls into two branches: physical (or affirmative ) takings and regulatory (or negative ) takings. Physical takings occur when the government, or a party it authorized, directly and physically appropriates private property, for example, by seizing a mine using eminent domain. Tahoe-Sierra Pres. Council v. Tahoe Reg l Planning Agency, 535 U.S. 302, 322 (2002); Bd. of Managers of Soho Int l. Arts Condo. v. City of New York, No. 01 Civ. 1226(DAB), 2004 WL , at 14*-15* (S.D.N.Y. Sept. 8, 2004) (SoHo III); Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537 (2005). By contrast, regulatory takings occur when regulatory action deprives owners of the full use or value of their property, such as where regulations placed on a mine make operating it wholly or substantially unprofitable. SoHo III at 15*. Put another way, these takings occur when governmental regulation of private property goes too far and is tantamount to a direct appropriation or ouster Hertel Ave. Assocs., LLC v. Calloway, 761 F.3d 252, 263 (2014); Pennsylvania Coal v. Mahon, 260 U.C. 393, 415 (1922). Regulatory takings can be divided into categorical and noncategorical takings, with categorical takings occurring in the extraordinary circumstance when no productive or economically beneficial use of the land is permitted and noncategorical takings occurring where there is substantial but less absolute deprivation of value. Sherman v. Town of Chester, 752 F.3d 554, 564 (2014); Huntleigh USA Corp. v. United States, 525 F.3d 1370, 1378 n.2 (2008); Tahoe at 330; Lingle at 538. Physical takings are diagnosed using the per se standard set forth in Loretto v. Teleprompter Manhattan Catv Corp., 458 U.S. 419 (1982), and categorical regulatory takings are similarly diagnosed using the per se test of Lucas v. S.C. Coastal Council, 505 U.S

26 (1992). Noncategorical regulatory takings are assessed using a more ad-hoc, fact-based inquiry from Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978). The events of this case constitute an unconstitutional taking under all three of these rationales, particularly a physical taking. A. The Circuit Court was correct in ruling that an injunction based on VARA s grant of a right of integrity to Spencer would amount to a per se physical taking as prohibited by the 5 th Amendment Jurisprudence involving physical takings is as old as the Republic and using VARA to justify Spencer s requested injunction would constitute an unconstitutional taking under a long lineage of straightforward per se rules. Tahoe at 322. As far back as 1789, this Court cautioned that the confiscation and redistribution of private property risked violating the fundamental, natural law principles that undergird our Constitution. Calder v. Bull, 3 U.S. (3 Ball.) 386 (1798). Even for takings that benefit the public, U.S. courts have asserted that compensation be paid to prevent a small subset of the community from bearing...public burdens which, in all fairness and justice, should be borne by the public as a whole. Armstrong v. United States, 364 U.S. 40, 49 (1960). The most facially obvious and easily diagnosed examples of such takings involve physical invasions of private property by the government (or private parties acting with the government s blessing). Early examples included flood waters redirected onto private property by a government dam, and a chicken farm whose operations were disrupted by a government airfield. Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166 (1872); United States v. Causby, 328 U.S. 256 (1946). In both cases, this Court found that government invasion of private property had resulted in an impermissible taking, effectively interpreting the language of the 5 th Amendment to prohibit permanent physical occupation of real property. Loretto at

27 This standard was crystalized in Loretto, which provides the strongest evidence that Spencer s proposed injunction would be a per se physical taking. Loretto involved a municipal law that required the owners of apartment buildings to allow a small portion of their property to be occupied by cable television equipment. Loretto at 419. This intrusion would continue as long as the property remained residential and the installer chose to continue using the equipment. Id. at 439. Loretto owned a residential building whose previous owner had allowed such an installation, but asserted that the continued presence of the equipment was an unconstitutional taking. Synthesizing the reasoning of the long line of physical takings cases, this Court agreed. It held that even though there was technically a way the intrusion could end, it was functionally permanent, and virtually any permanent, uncompensated, physical occupation of private property is per se an unconstitutional taking. Id. at 430. The court also ruled that the amount of space the intrusion occupies is irrelevant to the takings analysis. The equipment in Loretto only occupied around one cubic foot. However, the Court found that there is an impermissible taking even if the offending objects occupy only relatively insubstantial amounts of space and do not interfere with the landowner s use of the rest of his land. Id. at 340. Read together with Pruneyard and Kaiser Aetna v. United States, 444 U.S. 164 (1979), which involved the unconstitutional taking of a privately-constructed ocean channel, it is clear that the focus is solely on the portion of the property that is physically occupied. To the extent that an owner is permanently deprived of the use of that portion of the property, there is a taking. Recent decisions have supported this interpretation, explicitly stating that the government must compensate the owners of occupied property regardless of whether the interest that is taken constitutes an entire parcel or merely a part thereof. Tahoe at 322, see also Lingle at