The Volokh Conspiracy

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Free Speech

No First Amendment Protection for 12 Cypress Trees,

when plaintiff's "connection to his trees [was] rooted in a vague and indeterminate concept of spirituality, quantum physics, and cosmic mechanics."


From Joseph v. City of San Jose, a case brought by self-described "astrobiologist" Rhawn Joseph, and decided yesterday by Magistrate Judge Robert Illman (N.D. Cal.):

… Plaintiff's neighbor installed certain lighting equipment that had the effect of illuminating a portion of Plaintiff's home, as well as several trees and vines on Plaintiff's property. To put it briefly, Plaintiff was somewhat displeased with his neighbor's use of that lighting equipment so he erected certain large polyurethane panels to block the lights; {Plaintiff [had] believed that his neighbor's "lights were damaging Plaintiff's trees by attracting pests, and [] Plaintiff was concerned for the health of his trees which symbolized Plaintiff's religious beliefs as indicated by the Celtic Crosses in Plaintiff's yard and set within and between Plaintiff's [c]ypress trees."}

[W]hen the City of San Jose complained that the panels (as well as Plaintiff's cypress trees) were in violation of certain municipal code provisions, citations issued, and then administrative proceedings ensued, and the ultimate result was that Plaintiff removed the polyurethane panels himself but was not required to cut or remove his trees, or to pay any fines or fees, and the instant lawsuit nevertheless ensued. [Plaintiff was also required to prune certain vines between the trees] …

Plaintiff's first claim relies on the First Amendment and suggests that his "trees are expressions, symbols of his religious beliefs and are a protected form of speech" and that "Defendants' demand that Plaintiff destroy these trees is not only unlawful and without any legal authority … but a violation of the First Amendment: Freedom of religion and freedom of speech … Defendants must pay damages to Plaintiff, according to the formula of $2,500 per day per defendant, per cause of action, to compensate for the injuries suffered." …

{Plaintiff denies having any religious affiliation or—strictly speaking—any religious beliefs, instead, he described himself as subscribing to a more generalized and nebulous spirituality that he explained as being rooted in quantum physics and celestial mechanics as such:

[A]ctually they're more like spiritual beliefs and those beliefs are embedded in quantum physics in the sense that everything is related and everything is connected. The separation thing is an illusion on the quantum physics level and I believe that plants and trees have consciousness. When I go out in the forest, I can almost, like, feel the consciousness. I think some people mistake that as being fairies or ghosts, but I think there's a collective consciousness among trees and experiments have shown that plants are aware of threat. Using galvanic monitoring of plants, somebody says I'm going to burn you and the plant responds. And we also know that there's certain hormones and transmitters that plants—that are in the human brain or neurotransmitters involved of (sic) transition of though, and we know that some people feel like talking to their plants can help their growth.

So, I have beliefs that, spiritual beliefs about trees and it's related, again, to quantum physics and it's also related to celestial mechanics. And in terms of trees, we know in Genesis there's the Tree of Life and then there's the Tree of Good and Evil, we know people put up Christmas trees and put presents underneath it. So, belief in that trees have religious, spiritual significance is an age-old religious belief shared by many.

Plaintiff did suggest that he planted 12 cypress trees because he thinks the number 12 has both religious and cosmic significance—citing the fact that there were 12 tribes of Israel, 12 disciples of Christ, 12 hours in (part) of the day, 12 signs of the zodiac, and 12 gods of Olympus—he claims that "12 has been seen as a mystical, magical and religious symbol, and again, it has cosmological significance." He added that "as a reflection of my own beliefs, I planted 12 and I made sure it was 12, and then I put [the] Celtic Cross as well as other religious symbols such as a Buddha because I share Buddhist beliefs and those are right there in the front yard between those trees." In short, Plaintiff is quite adamant that his feeling towards his trees is not part of any set of religious beliefs—and certainly not part of any organized or recognized religion; instead, to put it in his own words, he describes trees as such: "they're still religious symbols—well, not religious, spiritual. Let's not use the word 'religious,' other people would because it is a religious symbol, for me it's a spiritual … to me it's a spiritual symbol that happens to have religious significance." When asked by Defense Counsel if removing the vines prevented him from being able to appreciate "the spiritualness" of his trees—Plaintiff responded, "No. No." Therefore, it appears that the vines, at least, were spiritually insignificant….}

Here, there is no genuine issue of material fact because: (1) the San Jose Municipal Code provisions requiring trees to be kept pruned and below a certain height are valid and neutral regulations of general application that do not constitute a constitutionally cognizable or otherwise substantial burden on the exercise of Plaintiff's beliefs as he has described them in his deposition; (2) Plaintiff specifically disavows religion, and claims that his connection to his trees is rooted in a vague and indeterminate concept of spirituality, quantum physics, and cosmic mechanics; (3) Plaintiff has failed to demonstrate that any of the actions complained of in his SAC ever actually impinged on any of his beliefs; and, (4) Plaintiff conceded that he was neither even made to cut his trees, or that he was ever assessed any fine or penalty related to his trees.

In order to state a free speech claim in this context, Plaintiff must show that the unfettered growth of his 12 cypress trees is conduct "sufficiently imbued with elements of communication" worthy of First Amendment free speech protection. To that end, Plaintiff must demonstrate (1) an "intent to convey a particularized message," and (2) that, "in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it." "[A] narrow, succinctly articulable message is not a condition of constitutional protection"; instead, the message must be "delivered by conduct that is intended to be communicative and that, in context, would reasonably be understood by the viewer to be communicative." Plaintiff has not even alleged any such thing, let alone presented competent evidence in support thereof. To put it mildly, the court is not persuaded that there is any likelihood at all—let alone a "great likelihood"—that the unfettered growth of the 12 cypress trees here would be intended by Plaintiff, or understood by anyone, to be communicative of anything or to any degree….