Free Speech

No First Amendment Right to Display Van as "Lawn Ornament"

And that's so even if the van is red, white, and blue.

|The Volokh Conspiracy |

From De Pere Ledgeview Municipal Court v. Knaus, decided today by the Wisconsin Court of Appeals:

In August 2015, the Town sent Knaus a letter advising him, among other things, that an old vehicle kept outside on his property did not comply with a Town ordinance [which generally bans "leav[ing] or allow[ing] to remain on the property any motor vehicle which is abandoned, junked, or hazardous"]. The Town requested that Knaus propose how to rectify this purported violation. Knaus responded via letter that the vehicle was a "van lawn ornament" ….

Knaus … insists that his rights to "Freedom of Speech and Expression" allowed him to display his "lawn ornament van" on his property, citing his vehicle's red, white and blue paint job as "show[ing] patriotic expression." As the circuit court noted, that Knaus may consider his vehicle a "lawn ornament" does not excuse the vehicle from compliance with [the ordinance]. And even if Knaus's "lawn ornament" could qualify as protected speech under the First Amendment, that alone does not render invalid either the ordinance or the Town's enforcement of it. See Ward v. Rock Against Racism (1989) (government may impose regulations on time, place and manner of speech if they are content-neutral, narrowly-tailored in service of a legitimate governmental interest, and do not foreclose all avenues of speech)…. Knaus does not cite any authority or develop an argument on this issue, so we decline to address it in any greater depth….

Sounds right to me. Indeed, if the law focused on the designs (e.g., barring any vehicles painted in American flag colors), it would be unconstitutionally viewpoint-basde—but a content-neutral restriction aimed at promoting aesthetics is constitutional, at least so long as it leaves open ample alternative channels for speech (such as via flags, signs, and the like), see City of Ladue v. Gilleo (1994). One can debate whether such aesthetic regulations improperly restrict people's property rights; but a content-neutral ban on having junked vehicles on one's property doesn't violate the First Amendment, regardless of the vehicle's paint job.

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  1. Wait a minute.

    Elsewhere Professor Volokh has been pleased to deploy a content sensitivity test which works like this: if you have to examine a specific case to tell whether it is, for instance, commercial speech or political speech, then that is a content-based distinction?because you had to look at the content to tell?and all the rules against content-based distinctions apply.

    Why not the same for lawn ornaments? If you have to examine one to see whether it is a junk van or a support-our-troops political appeal, well, that’s all about content. I don’t think that, but elsewhere EV seems to think that. Why the difference?

    1. Note the precise terms that Eugene uses: “a content-neutral restriction aimed at promoting aesthetics is constitutional, at least so long as it leaves open ample alternative channels for speech (such as via flags, signs, and the like).” It’s this kind of statement that makes it clear that Eugene belongs to a group of conservative academics who have been seeking to limit, not expand, the reach of the First Amendment. It would be one thing if he had said that the municipality had the right to prevent people from leaving hazardous material on their lawns; it’s an altogether thing for him to announce, ex cathedra, that there is no First Amendment issue with restrictions “aimed at promoting aesthetics.” Compare, in this regard, Eugene’s view that satire has to be “clear” to benefit from constitutional protection–which is, after all, an aesthetic, and transparently content-based, criterion–with the altogether contrary opinion of Arthur Hayes of Fordham University at: https://forward.com/opinion/385050/.

      1. I understood Eugene’s comment to be a description of the law, not advocacy of a policy preference.

    2. Nah, it’s just a junk vehicle. No evaluation necessary…

      http://fox11online.com/news/lo…..n-ornament

      1. how can it be junk when the owner has not discarded it? what if it were a brand new range rover?

        1. It’s “junk” because it’s an inoperable vehicle. It’s “junked” when he has it towed away.

          1. Correction*: According to th Town of Ledgeview, and the court, that sucker is “junked” right where it is. The town defines “junked motor vehicle” as “any vehicle that does not display a current and valid license placed lawfullyupon that vehicle.”

            *I never realized how much I rely on the edit function till I started coming to Reason.

            1. (Almost on cue) And! A junked vehicle must also meet three other requirements, which amount to its state of disrepair, the inability to move on its own power, and its age and low value.

        2. And if it were a brand new Range Rover, Prof. Volokh would’ve needed to look elsewhere for something to blog about.

    3. “If you have to examine one to see whether it is a junk van or a support-our-troops political appeal” – but they don’t have to look and see that. That’s the whole point. It didn’t matter what was painted on the van.

  2. Just another example of why I never say “Now I’ve heard everything.” He should’ve claimed he was running a junk vehicle farm. Everybody loves farms.

  3. I think it might be a different case if the homeowner had rendered the van “not a vehicle,” legally, by removing the VIN plate and junking it, dissolving the title, etc. He could have argued, “hey, not a vehicle, case closed.”

    1. Making an inoperable vehicle arguably more inoperable would not change the fact it’s a vehicle. Putting bunny ears on an elephant’s head, and a Pom Pom on its backside, does not make it a rabbit, and cutting off its legs and trunk won’t make it a snake.

      1. does cutting off a man’s dick make him a woman ?

        1. Did it for you?

      2. “Making an inoperable vehicle arguably more inoperable would not change the fact it’s a vehicle. ”

        Depends on how “vehicle” is defined for the law, but in plain English, you’re wrong. Taking some parts that used to be assembled into a vehicle, and re-assembling them into something that is no longer designed nor intended to transport things, obviously DOES transform it into not-a-vehicle.

        The problem is that somewhere in the back of his mind, he was probably thinking that he would make it operational again, and do he didn’t do that. A broken vehicle may be a work of art (as operable vehicles are often made into a work of art) but that doesn’t make it not-a-vehicle.

        1. “a thing used for transporting people or goods, especially on land, such as a car, truck, or cart.
          synonyms: means of transport, conveyance, motor vehicle.”

          The legal definition of “vehicle” depends on the definition in the law. For example, in some code (i.e. 40 CFR), things like military tanks are not vehicles, even if they are fully operable. In fact, “features which render its use on a street or highway unsafe, impractical, or highly unlikely” make you-would-think-vehicle objects into not-a-vehicle. The Wisconsin Court of Appeals held that a farm tractor was not a “motor vehicle” under a policy defining the term as a vehicle “designed for use on public roads.” I don’t know what local ordinance was used on this guy, but it probably is either undefined or talks about the intent and capability of being used on a public road.

          Note that this guy had no lawyer, and did not make any particular argument about his thing not being a vehicle — instead he just asserted that it was “art”. So in a technical sense, that’s the right answer, from a poorly (non-existent) legal argument. It is also the answer that most people want, since they don’t want assholes junking cars in their neighborhoods. But if he had done things a little differently, and was willing to spend tremendous amounts of money, it is easy to imagine different outcomes. But that exceeds his cost of storing an inoperable vehicle on his front lawn, so…

          1. Also, Ledgeview’s ordinance is very explicit, and includes not only the prohibition on storing junk vehicles but has a three-pronged test for determining if a vehicle is a junk vehicle: the state of the vehicle, it’s inability to move by itself, and it’s age and value.

        2. In the Town of Ledgeview, and likely any jurisdiction with a similar ordinance, this is a junk vehicle:

          http://fox11online.com/news/lo…..n-ornament

          Remove the tires and it’s a junk vehicle with no tires.
          Take off the doors and it’s a junk vehicle with no tires or doors.
          Kick out the windows, remove the seats, and dismantle the engine and it’s a junk vehicle with no tires, doors, winndows, seats or engine.

          Throw out the entire chassis and convert the body into a planter? You might be alright.

          If that was your neighbor’s property, how much of the vehicle would need to be removed for you to be okay living next to it because it’s not a vehicle?

          1. As I suspected, the law there defines a vehicle by intent: “self propelled
            device used or intended to be used for the transportation of freight or
            passengers upon a street or highway.”

            I earlier tried to post a number of amusing pictures of things which
            are not vehicles, but the forum didn’t like my putting URLs on here.

            As to your question about how okay I would personally be living next to him
            or some hypothetical artist: who cares what I think? I’d go with the law, in a court.

            1. I suggest that it’s only partly about what you remove, but at least equally important what you ADD to the item to make it not a vehicle. Adding some paint like he did is not enough to make the transformation.

              Novelty Seating, BBQing, Clubhouse, and Chicken Coop are some examples off the top of my head of things that are often made out of vehicles and placed on lawns. He wasn’t trying hard enough.

  4. Now that we have the light projection technology (used for holiday decorations or even for protests against the walls of Trump properties), how about a house-sized projection of images of his patriotic van, playing 7×24.

    That’s what I would do, but I’m an asshole 🙂

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