No. 14-1986
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 THE RESPONDENT
______________
TEAM: R
ATTORNEYS FOR THE RESPONDENT
QUESTIONS PRESENTED FOR REVIEW
1.
Whether VARA’s grant of a right of integrity to an author of a work of visual art
so that the author can prevent a landowner from removing, and in the process destroying, a
work of visual art located on the landowner’s property violates the landowner’s freedom of
speech rights under the First Amendment.
2.
Whether VARA’s grant of a right of integrity to an author of a work of visual art
so that the author can prevent a landowner from removing, and in the process destroying, a
work of visual art located on the landowner’s property results in an uncompensated taking in
violation of the Fifth Amendment.
ii
PARTIES TO THE PROCEEDINGS
The Petitioner in this case is Shawn Spencer, a visual artist from DePaulia. The
Respondent is Carlton Lassiter, local resident and owner of a commercial property in downtown
DePaulia City.
iii
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW ................................................................................. II
PARTIES TO THE PROCEEDINGS ........................................................................................... III
TABLE OF CONTENTS ............................................................................................................. IV
TABLE OF AUTHORITIES ....................................................................................................... VII
DISPOSITION BELOW .............................................................................................................. IX
JURISDICTIONAL STATEMENT ............................................................................................. IX
STATUTORY PROVISIONS ...................................................................................................... IX
STATEMENT OF THE CASE ....................................................................................................... 1
SUMMARY OF THE ARGUMENT .............................................................................................. 3
ARGUMENT .................................................................................................................................. 5
I.
VARA’s Provision Prohibiting A Landowner From Removing, And In The Process
Destroying, A Recognized Work Of Art Located On The Landowner’s Property
Violates The Landowner’s Freedom Of Speech Rights Under The First Amendment ....... 5
A.
Standard Of Review ................................................................................................ 5
B.
VARA’s Prevention Of Lassiter’s Removal Of The Blue Pineapple Constitutes
Compelled Speech Under The First Amendment .................................................... 5
C.
i.
First Amendment Protection From Compelled Speech Extends To
Displaying Works Of Art ............................................................................ 6
ii.
Requiring Lassiter To Display The Blue Pineapple On His Property
Constitutes Compelled Speech .................................................................... 7
The Compelled Speech Of Displaying The Sculpture Violates The First
Amendment ........................................................................................................... 10
i.
VARA Does Not Pass Strict Scrutiny, Which Is The Standard Level
Of Scrutiny For Issues Of Compelled Speech ........................................... 10
ii.
Even If Strict Scrutiny Does Not Apply, VARA Still Fails
Intermediate Scrutiny ................................................................................ 12
iv
II.
VARA’s Provision Prohibiting A Landowner From Removing A Recognized Work
Of Art Constitutes An Uncompensated Taking Under The Fifth Amendment Takings
Clause ................................................................................................................................ 13
A.
Standard Of Review .............................................................................................. 13
B.
Any Permanent Physical Appropriation Of Private Property By The
Government Is A Per Se Taking Under The Fifth Amendment Of The
Constitution ........................................................................................................... 13
C.
If The Government Has Committed A Permanent Physical Appropriate Of
Private Property, Then A Per Se Taking Is Found Regardless Of The Public
Interest Advanced By The Regulation .................................................................. 14
D.
VARA’s Mandate That A Work Of Visual Art Be Preserved By A Private
Landowner Equates To A Permanent Physical Appropriation Of Property,
And Thereby Qualifies As A Per Se Taking ......................................................... 14
i.
The Law Benefits From Establishing A Bright Line Rule Of Deeming
All Permanent Physical Occupations As Per Se Takings, Regardless
Of The Magnitude Of The Occupation ..................................................... 15
ii.
The Permanence Of A Physical Taking Is A Function Of How
Exclusive The Occupation Is And The Level Of Control That The
Owner Exercises Over The Occupation. A Determination That The
Taking Is Permanent Does Not Require That The Duration Of The
Occupation Be Wholly Indefinite .............................................................. 16
E.
If There Is No Per Se Taking, A Regulatory Taking Has Still Occurred Where,
As Here, The Property Owner Has Been Singled Out To Hold A Burden That
The Community Should Share .............................................................................. 17
F.
VARA’s Mandate Of Preserving The Blue Pineapple Is A Regulatory Taking
Under The Penn Central Factor Test ..................................................................... 18
i.
VARA's Mandate Interferes Substantially With Lassiter’s Reasonable
Investment-Backed Expectations .............................................................. 18
ii.
VARA's Requirements Result A Substantial Economic Impact On
The Property .............................................................................................. 19
iii.
Public Interests Advanced By VARA Do Not Trump Considerations
Of The Legislation’s Effect On The Property Owner ............................... 19
iv.
Protecting Property Rights Serves A More Essential Public Interest
Than The Protection Of Artists’ Moral Rights .......................................... 20
v
v.
G.
Even If The Government Action Is Found To Be Temporary In
Nature, This Does Not Deter A Finding Of A Taking .............................. 21
Permission Given By A Previous Property Owner Does Not Prevent Finding
Of A Taking ........................................................................................................... 22
APPENDIX .................................................................................................................................... B
vi
TABLE OF AUTHORITIES
CASES
Arkansas Game and Fish Com’n. v. U.S., 133 S.Ct. 511 (2012) .................................................. 21
Armstrong v. United States, 364 U.S. 40 (1960) ........................................................................... 17
Bd. of Managers of Soho Int'l Arts Condo. v. City of N.Y., 2004 WL 1982520, 10 (S.D.N.Y.
Sept. 8, 2004) ............................................................................................................................. 12
Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996) ................................................................ 6, 8
Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485 (1984) .......................... 5, 13
Carter v. Helmsley-Spear, Inc. 71 F.3d 77 (2d Cir. 1995) ............................................................ 17
Fresh Pond, 464 U.S. 875 (1983)............................................................................................ 16, 20
Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) ................................. 6
Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995) ......... 6
Lingle v. Chevron, 544 U.S. 528 (2005)............................................................................ 13, 18, 20
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) .................... 13, 14, 15, 16
Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974)............................................................... 9
Palazzolo v. Rhode Island, 533 U.S. 606 (2001)........................................................................... 22
Phillips v. Pembroke Real Estate, Inc., 288 F. Supp. 2d 89 (D. Mass. 2003) ....................... 7, 9, 11
Piarowski v. Illinois Cmty. Coll. Dist. 515, 759 F.2d 625 (7th Cir. 1985) ...................................... 6
PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980) ............................................... 8, 16, 17
Quality King Distributors, Inc. v. L’anza Research Intern, Inc., 523 U.S. 135 (1998) ................ 20
West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) ........................................ 3, 6, 8
Wooley v. Maynard, 430 U.S. 705 (1977) ......................................................................... 3, 6, 7, 10
Yee v. City Of Escondido, CA., 503 U.S. 519 (1992) .................................................................... 22
vii
Youpee v. Babbitt, 67 F.3d 194 (1995) .............................................................................. 13, 18, 21
STATUTES
Visual Artists Rights Act of 1990, Pub. L. No. 101-650, §§ 601-610, 104 Stat. 5089, 5128-33
(codified in various sections of 17 U.S.C.) (1990) .............................................................passim
MISCELLANEOUS
Eric E. Bensen, The Visual Artists' Rights Act of 1990: Why Moral Rights Cannot Be Protected
Under the United States Constitution, 24 Hofstra L. Rev. 1127, 1130-31 (1996) .. 16, 17, 19, 21
U.S. Const. amend. I ........................................................................................................................ 5
U.S. Const. amend. V .................................................................................................................... 20
viii
DISPOSITION BELOW
The ruling of the United States District Court for the Eastern District of DePaulia, which under
the right of integrity granted to him under VARA §106A(a)(3) issued Petitioner Shawn Spencer
an injunction lasting for the duration of his lifetime that prohibited Respondent Carlton Lassiter
from removing, modifying, or destroying a work of visual art created by Spencer and installed
on Lassiter’s property, was reversed and the injunctive relief vacated by the United States Court
of Appeals for the Twelfth Circuit on November 20, 2014, and is not reported. Lassiter v.
Spencer, No. 14-1986, slip op. (12th Cir. Nov. 20, 2014).
JURISDICTIONAL STATEMENT
The judgment of the United States Court of Appeals for the Twelfth Circuit was entered on
November 20, 2014. On November 21, 2014, this Court granted Petitioner’s timely petition for
writ of certiorari and has jurisdiction pursuant to 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS
1.
The Visual Artists Rights Act of 1990, Pub. L. No. 101-650, §§ 601-610, 104 Stat. 5089,
5128-33 (codified in various sections of 17 U.S.C.) (1990) (“VARA”), a legislative act granting
protection to moral rights and protections to artists, is reproduced in Appendix A of this Brief.
ix
STATEMENT OF THE CASE
This case concerns whether a landowner’s freedom of speech rights under the First
Amendment are violated under the Visual Artists Rights Act of 1990 (VARA) and its granting of
a right of integrity to an author of work of visual right so that the author can prevent a landowner
from removing, and in the process destroying, a work of visual art located on the landowner’s
property, and whether VARA’s grant results in an uncompensated taking in violation of the Fifth
Amendment and thus a violation of the landowner’s property rights.
Respondent, Carlton Lassiter, is a well-known real estate developer based in Wispy
Sunny Pines, DePaulia and the current owner of a commercial property, known as “the
Marlowe”, located in downtown DePaulia. R. at 2. Lassiter purchased the property on June 6,
1989, from its previous owner Karen Vick. Id. The transfer in ownership rights occurred prior to
VARA’s passing. In 1984, also prior to the passing of VARA, Vick commissioned the Petitioner,
Shawn Spencer, to create a work of art to be installed in the front courtyard of the property. Id.
Under their agreement, the large sculptural work would publicly accessible from the courtyard
for the Marlowe. Id. at 3. The agreement also specified that Spencer would retain title and
copyright to the work, and although it also granted Spencer ownership of the work, it remained
silent as to how long the work was to be installed in the courtyard and made no provisions as to
its possible future removal. Id. The work of art installed in Marlowe’s courtyard was a threedimensional bronze sculpture that vaguely resembles a pineapple. Id. The sculpture, which over
time has acquired a blue patina and has become known as Blue Pineapple, stands 50 feet tall and
weights 168 tons. Id.
Sometime in 2013, Lassiter decided to modernize the Marlowe and its surrounding
property and hired the architecture firm Brannigan & Woody to develop a remodeling plan. Id. at
1
4. The firm’s top architect, Buzz McNab, recommended removing the Blue Pineapple and
overhauling the building and courtyard in order to proceed with the modernization plans of the
property. Id. Lassiter publicly announced his plans to remove the sculpture in an interview with
the local papers, which cased some backlash in the community. Id.
In response to Lassiter’s planned removal of the Blue Pineapple, Spencer brought an
action in the U.S. District Court for the Eastern District of DePaulia, seeking an injunction
preventing the removal of the sculpture from the Marlowe’s courtyard under the rights granted to
the artist by the Visual Artists Rights Act of 1990 (VARA). Id. at 4-5. During a bench trial
Spencer argued that its removal would destroy the Blue Pineapple, as the sculpture was cast onsite and the base was welded to the courtyard floor, and as such, the sculpture would have to be
cut off, an irreparable action, which would result in the physical destruction of the Blue
Pineapple. Id. Spencer argued that the removal and subsequent destruction of the work of art
would violate the right of integrity granted to him under VARA §106A(a)(3) and Lassiter
countered that preventing him from removing the sculpture would result in compelled speech, in
violation of his First Amendment freedom of speech right, and in an uncompensated taking, in
violation of the Fifth Amendment. Id. at 5. The District court issued an injunction prohibiting
Lassiter from removing, modifying, or destroying the Blue Pineapple during Spencer’s lifetime.
Id. at 5.
Lassiter appealed the district court’s decision and on November 20, 2014 the United
States Court of Appeals for the Twelfth Circuit reversed the judgment of the district court and
vacated the district court’s grant of injunctive relief to Spencer. Id. at 2. The court concluded that
VARA does “impermissibly encroach upon the rights of private property owners,” and
“encroaches too much onto the rights of others in the process of protecting the rights of authors
2
of works of visual art.” Id. at 2, 8. The court also found that VARA’s requirement that Lassiter
continue to display Spencer’s Blue Pineapple statute constituted compelled speech. Id. at 11.
On November 21, 2014 this Court granted Spencer’s timely petition for writ of certiorari
to the Twelfth Circuit.
SUMMARY OF THE ARGUMENT
I. The First Amendment Freedom of Speech as Applied to VARA
VARA contains provisions that allow artists to prevent the modification or destruction of
their art. When applied to a private landowner who purchased a piece of property containing a
permanent work of art prior to VARA’s enactment, the Act violates the landowner’s freedom of
speech under the First Amendment by preventing him from removing—and thereby
destroying—the art.
This Court has long held that the First Amendment freedom of speech must necessarily
include the freedom not to speak. Wooley v. Maynard, 430 U.S. 705, 714 (1977). Additionally,
the protections offered by the First Amendment are not limited simply to verbal speech or
expressions that communicate a political or ideological message. Rather, the full protection of
the First Amendment extends to numerous forms of expression and symbolism, as in West
Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943) (where saluting the flag
constituted protected speech). This Court should follow the rationale of the Circuit Courts,
several of which have expressly interpreted this protection to also include works of art, such as
sculptures like the Blue Pineapple. The First Amendment, therefore, should protect both the right
to display, and not display, art. Consequently, VARA’s provisions that prevent Lassiter from not
3
displaying the sculpture constitute compelled speech, burdening his First Amendment freedom of
speech.
Since compelled speech is at issue, the Court should use the strict scrutiny test to
determine constitutionality. As applied to Lassiter, VARA fails under strict scrutiny because it
serves no compelling government interest, nor is it narrowly tailored to serve its interests. The
government interest of promoting public art is vague and unsupported in the record, and there are
other methods to achieve the government’s interests—methods that would not infringe on the
First Amendment, and which might even be more effective. Even if this court finds that this
compelled speech does not merit strict scrutiny, VARA fails under intermediate scrutiny, as well.
The regulation similarly has no evidence of furthering an important or substantial government
interest, but it does substantially burden more speech than is necessary in an attempt to achieve
the government’s interest.
II. The Fifth Amendment Takings Clause as Applied to VARA
VARA’s provisions requiring preservation of visual art on private property constitute a
permanent physical taking and therefore fall under one of the per se takings categories.
Precedent establishes that the size of the invasion is irrelevant to a per se taking determination.
This court’s previous rulings dictate that the “permanence” of the taking is a function of the level
of control that the owner exercises over the existence of the object, and not by whether that
existence is indefinite.
Even if this Court finds that VARA’s provisions do not fall under the category of a per se
taking, a regulatory taking still exists under the Penn Central factor test. VARA’s mandate
creates a negative effect on all three factors of economic impact, effect on the property owner’s
4
reasonable investment-backed expectations, and the character of the government action. The
public interest that VARA supports, in the form of defending artists’ moral rights, is outweighed
by the necessity of protecting fundamental property rights expounded in the United States
Constitution. Permission given by a previous property owner does not negate a finding of a
taking subject to just compensation.
ARGUMENT
I.
VARA’s Provision Prohibiting A Landowner From Removing, And In The Process
Destroying, A Recognized Work Of Art Located On The Landowner’s Property
Violates The Landowner’s Freedom Of Speech Rights Under The First Amendment.
A. Standard Of Review
This issue creates a pure question of law under the First Amendment to the Constitution.
Thus, it should be reviewed de novo. See Bose Corp. v. Consumers Union of United States, Inc.,
466 U.S. 485, 499 (1984).
B. VARA’s Prevention Of Lassiter’s Removal Of The Blue Pineapple Constitutes
Compelled Speech Under The First Amendment
The First Amendment to the Constitution prevents government action from compelling
Americans to express a thought or idea—whether ideological or not—against their will. In
relevant part, the First Amendment provides: “Congress shall make no law…abridging the
freedom of speech.” U.S. Const. amend. I. Fundamentally inherent in this freedom of speech is
the freedom to not speak. “The right of freedom of thought protected by the First Amendment
against state action includes both the right to speak freely and the right to refrain from speaking
5
at all.” Wooley, 430 U.S. at 714 (citing Barnette, 319 U.S. at 633-34); accord Harper & Row
Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 559 (1985).
i. First Amendment Protection From Compelled Speech Extends To Displaying
Works Of Art
The First Amendment protects not only compelled speech that contains a readily
identifiable political or ideological message, but also compelled expression of art that contains
no political or ideological message. This includes the display of symbols, which can represent
“some system, idea, institution, or personality, [and] is a short cut from mind to mind.” Barnette,
319 U.S. at 632. In Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515
U.S. 557, 569 (1995), this Court held that the private organizer of a parade maintained his
freedom of speech regarding the parade, even though there were many voices in the crowd and
the organizer did not isolate them into one exact message. “A narrow, succinctly articulable
message is not a condition of constitutional protection.” Id. Additionally, in light of this Court’s
decisions, multiple Circuit Courts—including, now, the Twelfth Circuit—have made explicit the
appropriate conclusion regarding First Amendment protection of artistic expression: it must
receive the same protection as any other speech. “Visual art is as wide ranging in its depiction of
ideas, concepts and emotions as any book, treatise, pamphlet or other writing…[P]aintings,
photographs, prints and sculptures…always communicate some idea or concept to those who
view it, and as such are entitled to full First Amendment protection.” Bery v. City of New York,
97 F.3d 689, 695-96 (2d Cir. 1996). “The freedom of speech and of the press protected by the
First Amendment has been interpreted to embrace purely artistic as well as political
expression…” Piarowski v. Illinois Cmty. Coll. Dist. 515, 759 F.2d 625, 628 (7th Cir. 1985).
Since the First Amendment protects against compelled speech, and since artistic expression is
6
under the same protection as all other speech, “compelled artistic expression” must burden the
rights protected by the First Amendment. Phillips v. Pembroke Real Estate, Inc., 288 F. Supp. 2d
89, 103-04 (D. Mass. 2003).
ii. Requiring Lassiter To Display The Blue Pineapple On His Property
Constitutes Compelled Speech
VARA’s prohibition of Lassiter’s removal of the sculpture is precisely the type of
compelled speech prohibited by the First Amendment. In Wooley, this Court held that a state
violated its citizens’ First Amendment rights when it required its residents to display the motto
“Live Free or Die” on their license plates, forcing “an individual to participate in the
dissemination of an ideological message by displaying it on his private property in a manner and
for the express purpose that it be observed and read by the public.” 430 U.S. at 713. That same
pattern is closely mirrored in the case at bar. As applied, VARA requires Lassiter to display a
work of art on his privately owned property for the sole purpose that the public observes it.
The only substantial difference between Lassiter’s situation and that in Wooley is that the
Blue Pineapple does not disseminate an explicit ideological message. That, however, does not
mean that an ideological message does not exist. The Blue Pineapple is a physically dominant
piece standing 50 feet tall and weighing 168 tons. R. at 3. In addition to its sheer presence, the
sculpture has become a symbol of Marlowe and DePaulia as a whole, and is the most recognized
and visited work of public art in all of DePaulia. Id. at 4. The sculpture is therefore quite similar
in its role to iconic structures like the Statue of Liberty in New York or the Gateway Arch in St.
Louis—albeit on a smaller scale. This symbolism is again evidenced by the fact that about 75%
of all DePaulia residents oppose the structure’s removal, showing that the sculpture evokes
strong feelings of unity, identity, or other equally powerful sentiments. Id. “A person gets from a
7
symbol the meaning he puts into it, and what is one man's comfort and inspiration is another's
jest and scorn.” Barnette, 319 U.S. at 632-33.
Even if the Blue Pineapple completely lacked an ideological message, however, VARA’s
prevention of Lassiter from removing the sculpture would still constitutes compelled speech
under the First Amendment. Both parties have conceded that this sculpture is a work of art of a
recognized stature. Id. at 8. It follows that, as in Bery, the sculpture must communicate some
concept or idea to the public who views it, and should be considered identical to ideological
speech in the eyes of the First Amendment. 97 F.3d at 696. Therefore, even if this Court finds
that the sculpture contains no ideological message, the compelled display of the Blue Pineapple
is as much of a burden on Lassiter’s freedom of speech as compelled expression of any other
ideological message.
The nature of the burden on Lassiter’s First Amendment freedom of speech is also
unaffected by the fact that the compelled speech was created by Spencer, a private individual,
instead of a government actor. Although this court held that a privately owned shopping center
was not compelled to speak under the First Amendment when it was forced to allow private
members of the public to pass out pamphlets of various materials, that decision did not turn
primarily on the fact that the message originated from private actors. PruneYard Shopping Ctr. v.
Robins, 447 U.S. 74, 87-88 (1980). The most important factor this Court considered was that the
messages contained in the pamphlets were unlikely to be attributed to the owner of the shopping
center because the nature of a shopping center lends itself to members of the public walking
around and sharing ideas that don’t necessarily belong to the owner of the building. Id. at 87.
Lassiter, on the contrary, is required to maintain a single, monumental icon on his private
property. Were the sculpture instead an equally gigantic banner, the speech on that banner would
8
be taken as belonging to no one but Lassiter. The same logic applies to the sculpture. This Court
in PruneYard also relied on the fact that the State did not dictate a specific message to be
displayed on the shopping center’s property. Id. Oppositely, as applied to Lassiter, VARA
precisely requires that the Blue Pineapple remain on display on Lassiter’s property. Finally, this
Court identified that the shopping center could simply disclaim any sponsorship of the pamphlets
by posting signs where the pamphlets were being distributed. Id. It would be illogical and
unreasonable to expect Lassiter to do the same. The signage would have to be equally as massive
as the sculpture, and would likely be both ineffective and damaging to Lassiter’s property value.
This Court has held elsewhere that a person who is compelled to speak the ideas of another
private citizen has been deprived of his First Amendment rights just as much as if a government
entity had created the speech. See Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 258 (1974).
An argument can be made that VARA does not compel Lassiter to speak because the
previous property owner invited Spencer to install the sculpture on the property, and Lassiter
purchased the property with knowledge of the sculpture’s existence. However, this argument
fails for several reasons. It relies completely on Phillips, a District Court case, where a public
park manager was not permitted to remove pieces of visual art from the park and thereby violate
their integrity. 288 F. Supp. 2d at 105. The court held that this restriction did not constitute
compelled speech for several reasons: (1) the manager personally contracted with the artist to
have the artwork installed; (2) VARA was in effect at the time of the contract, and the manager
did not contract around its conditions; and (3) the manager had to get approvals from
government agencies to alter the park. Id. at 103-04. The case at bar distinguishes itself from
Phillips in every one of those areas. (1) Lassiter did not invite Spencer to install the artwork on
his property; he purchased the property after the sculpture was already installed, R. at 2, possibly
9
with intentions of changing or removing parts of the property to make them to his liking. (2)
VARA did not exist when Lassiter purchased the property, and did not come into existence until
almost two years after the purchase. Id. at 6. There was no way for him to know he would be
bound to continue displaying Spencer’s sculpture, and accordingly there was no way for him to
contract around it. (3) Lassiter is the sole owner of his private property, Id. at 2, which affords
him greater First Amendment protection than the manager in Phillips. “An owner of purely
private property would have a stronger First Amendment interest in his own artistic expression—
and the right to change his mind about artistic merit after purchasing art.” Id. at 104.
C. The Compelled Speech Of Displaying The Sculpture Violates The First
Amendment
i. VARA Does Not Pass Strict Scrutiny, Which Is The Standard Level Of
Scrutiny For Issues Of Compelled Speech
Strict scrutiny is the highest standard to which laws are held when they burden civil
liberties, and it is the threshold by which compelled speech must be reviewed. Wooley, 430 U.S.
at 416-17. This means that the government-imposed speech must serve a compelling government
interest and use narrowly tailored means to do so. Id. VARA, as applied to the case at bar, fails
this test on both fronts.
It is hard to see any compelling nature in the government’s interest advanced by VARA.
While some rhetoric may claim that the purpose of protecting great works of art is so that the
public can continue to enjoy them, the real purpose of VARA is revealed by its structure and
language. “The author of a work of visual art…shall have the right…to prevent any destruction
of a work of recognized stature…Only the author of the work has the rights conferred…in that
work.” 17 U.S.C.A. § 106A. It is plain that the purpose of the statute is to protect the rights of
10
the author, and not those of the public, especially since VARA allows the work of art to be
destroyed once the author dies or waives his right under the Act. Id. This is not a compelling
government interest that would justify the restriction of private citizens’ First Amendment rights.
Neither is it a compelling interest to say that offering this protection to artists will encourage
them to create more art work, knowing that their work will endure for their lifetimes. This is pure
speculation. The record contains no evidence that VARA has in any way achieved a purported
goal of providing more art to the public since it was enacted over fourteen years ago. In fact, it is
equally possible that VARA actually chills the creation of art, because fewer landowners will
commission works of art that they cannot later remove or destroy. Any claimed compelling
government interest accomplished through VARA is thus baseless, and does not pass this prong
of strict scrutiny.
VARA has therefore failed the strict scrutiny test, and no further analysis is required.
However, even if this Court finds that VARA accomplishes a compelling government interest by
requiring Lassiter to maintain the sculpture on his property, it still fails under strict scrutiny
because it does not do so through narrowly tailored means. There are other ways to achieve the
goal of protecting works of art rather than impeding on the First Amendment rights of property
owners. The government could offer financial or tax incentives to property owners, or give
people the ability to donate property for the preservation of public art. Neither is VARA
narrowly tailored as applied to Lassiter because it allows artists to contractually waive their
rights to the integrity of the work. See Phillips, 288 F. Supp. 2d at 104. VARA was not in effect
at the time Lassiter purchased the property, nor did he have any type of contractual relationship
with Spencer, so it would have been impossible for Lassiter to obtain a contractual VARA
waiver. Since there are viable alternatives for accomplishing this government interest, and since
11
VARA captured Lassiter retroactively and gave him no chance to get a waiver from Spencer, the
Act fails to accomplish its stated goals through narrowly tailored means.
ii. Even If Strict Scrutiny Does Not Apply, VARA Still Fails Intermediate
Scrutiny
Although strict scrutiny is the appropriate standard to apply in this case of compelled
speech, if this Court finds that intermediate scrutiny should apply, VARA will still fail the test.
Intermediate scrutiny regarding speech “requir[es] the regulation to further an important or
substantial governmental interest unrelated to the suppression of free speech, provided the
incidental restrictions [on speech] did not burden substantially more speech than is necessary to
further those interests.” Bd. of Managers of Soho Int'l Arts Condo. v. City of N.Y., 2004 WL
1982520, at *10 (S.D.N.Y. Sept. 8, 2004). VARA fails here for the same reasons it fails under
strict scrutiny. It is unlikely that the protection of works of art itself even rises to the level of an
“important or substantial government interest” that would permit a burden on free speech. Even
if the goal of proliferating works of art rises to that level of interest, however, the regulation must
actually accomplish that goal in some way. There is no evidence whatsoever in the record that
VARA has done anything to actually promote the creation and display of art. As stated above,
the regulation may even discourage new works of art from being created. With a complete lack
of supporting evidence, it cannot be said that VARA furthers an important or substantial
government interest.
Equally, even if VARA did further such a government interest, it burdens substantially
more speech than is necessary to further that interest. As discussed above, there are other, more
effective ways to accomplish this government interest without burdening free speech.
12
Additionally, the fact that Lassiter had this restriction foisted upon him retroactively increases
the burden on his First Amendment rights.
II. VARA’s Provision Prohibiting A Landowner From Removing A Recognized Work Of
Art Constitutes An Uncompensated Taking Under The Fifth Amendment Takings
Clause
A. Standard Of Review
Since this appeal requires a review of constitutional questions and is a law-based inquiry,
the finding of the lower court should be reviewed de novo. See Bose Corp., 466 U.S. at 499.
B. Any Permanent Physical Appropriation Of Private Property By The
Government Is A Per Se Taking Under The Fifth Amendment Of The
Constitution
This Court has long recognized several categories of government action as per se takings:
(1) permanent physical occupation of the property; (2) deprivation of all economically beneficial
use of his property, and (3) relinquishment of one of the core “sticks” in the bundle of property
rights. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 425–426 (1982); Lucas v.
South Carolina Coastal Council, 505 U.S. 1003, 1019 (1992); Youpee v. Babbitt, 67 F.3d 194,
200 (1995). In Lingle v. Chevron, this Court clarified that “regulatory actions generally will be
deemed per se takings for Fifth Amendment purposes where [the] government requires an owner
to suffer a permanent physical invasion of her property…” 544 U.S. 528, 529 (2005). This per se
rule was established in Loretto, where the court noted that a physical occupation of private
property “is perhaps the most serious form of invasion of an owner's property interests,” and
therefore uniquely necessitated protection under the law. 458 U.S. 419, 435 (1982).
13
C. If The Government Has Committed A Permanent Physical Appropriate Of
Private Property, Then A Per Se Taking Is Found Regardless Of The Public
Interest Advanced By The Regulation
If the government regulation has resulted in a permanent physical occupation of private
property, then a balancing of the public interest does not weigh into the takings analysis, because
the assault on property rights is deemed to be too great. Loretto, 458 U.S. at 426. As stated in
Loretto, “a permanent physical occupation authorized by government is a taking without regard
to the public interests that it may serve. Our constitutional history confirms the rule, recent cases
do not question it, and the purposes of the Takings Clause compel its retention.” Id.
D. VARA’s Mandate That A Work Of Visual Art Be Preserved By A Private
Landowner Equates To A Permanent Physical Appropriation Of Property, And
Thereby Qualifies As A Per Se Taking
VARA’s provisions demand that a private owner allow the property of another to remain
on the property unaltered, thereby functionally ousting the owner from a portion of her own
property. 17 U.S.C. § 106A(a)(3)(A-B). VARA guarantees to the artist a right of integrity,
whereby the art may be not subjected to “any intentional distortion” or destruction. Id. This
translates into a permanent physical taking, whereby the government has mandated that an
artist’s work be allowed to occupy the land of another without just compensation. Though
VARA may be said by some to be regulation of the use of land, the consequence of that
regulation is to force upon the owner the physical acceptance of a stranger’s property upon her
own land, which equates in all practicality to a physical taking. Id.
14
i. The Law Benefits From Establishing A Bright Line Rule Of Deeming All
Permanent Physical Occupations As Per Se Takings, Regardless Of The
Magnitude Of The Occupation The size and scope of the physical occupation should be irrelevant in the determination of
a permanent physical taking, because a bright line rule facilitates consistency and expediency in
the law. In Loretto, this Court was required to decide whether the presence of cables less than an
inch in diameter constituted a permanent physical taking. 458 U.S. at 422. In choosing to
disregard the magnitude of the physical invasion onto the property, the Court noted the
dangerous area that would be entered if it were forced to determine just how many cables would
need to be amassed in order to reach the specific magnitude threshold. Id. at 436-437. Entering
this arena of decision-making would open the floodgates to litigation requiring a court to define
the exact point at which a physical occupation reaches the magnitude where it becomes a per se
taking. Further, the magnitude or size of the taking may still be reflected in the amount of
compensation due, which allows for the issue to still play a role in the outcome of the case
without muddying the waters of precedent by drawing arbitrary distinctions between what is, and
what is not, a taking based on the size of the physical invasion. Id. at 437. Even if this Court
chooses not to apply a bright line rule, however, the precedent established by Loretto still
dictates that the presence of the Blue Pineapple meets the threshold of a permanent physical
taking. The presence of the Blue Pineapple covers an area much larger than the cable boxes and
wires at issue in Loretto—it stands fifty feet tall and weighs 168 tons. R. at 3. The Blue
Pineapple is therefore an even more serious assault on the property rights that the per se rule
aims to protect.
15
ii. The Permanence Of A Physical Taking Is A Function Of How Exclusive The
Occupation Is And The Level Of Control That The Owner Exercises Over
The Occupation. A Determination That The Taking Is Permanent Does Not
Require That The Duration Of The Occupation Be Wholly Indefinite
In the context of physical per se takings, this Court has considered “temporary” only
those invasions where the property owner can control the “time, place, and manner” in which the
invasion occurs. PruneYard Shopping Center, 447 U.S. at 84.. The permanent nature of the Blue
Pineapple’s placement for the duration of Spencer’s lifetime leaves Lassiter with no control over
the time, place, and manner in which the Blue Pineapple exists. 17 U.S.C.A. § 106A(d). This
concept was reiterated in Fresh Pond, where this Court established once again that a permanent
invasion is one where the temporal aspects of the invasion are controlled by a third party. 464
U.S. 875, 877 (1983). These cases demonstrate that this Court has not mandated that the term of
the occupation be explicitly indefinite or eternal, but has instead chosen to focus on the owner’s
level of control over the appropriation. In the case at bar, the existence of the Blue Pineapple on
Lassiter’s property is dictated wholly by an outside party without regard to the owner’s wishes
over the “time, place, and manner” in which the occupation occurs. 17 U.S.C.A. § 106A(d).
Therefore, this Court should consider VARA’s lifetime mandate as a permanent taking of
Lassiter’s property. Id.
Further, in Loretto this Court considered the government regulation to be a permanent
invasion even though the legislation required the cable boxes to remain only so long as the
property remained residential. 458 U.S. at 422. This is because “permanent” in the context of a
per se evaluation refers to the exclusive nature of the occupation on the property. Eric E. Bensen,
The Visual Artists' Rights Act of 1990: Why Moral Rights Cannot Be Protected Under the United
States Constitution, 24 Hofstra L. Rev. 1127, 1130-31 (1996). Protesters passing out leaflets,
16
such as in PruneYard, illustrate a temporary occupation, whereas the installation of sculpture is a
permanent occupation due to the fact that the owner has been wholly ousted from that portion of
the property and a stranger has taken exclusive control. 447 U.S. at 84.
Moreover, even if this court decides to define permanence based on the temporal
existence of the object, then it would still meet the definition of a permanent physical taking.
This is because of the possibility that Spencer may outlive Lassiter, a possibility that renders the
occupation permanent to Lassiter for all practical purposes. Bensen at 1130-31. Therefore, this
Court should find presence of the pineapple to be permanent for the purposes of a takings
determination.
E. If There Is No Per Se Taking, A Regulatory Taking Has Still Occurred Where,
As Here, The Property Owner Has Been Singled Out To Hold A Burden That
The Community Should Share
If the action does not fall within the parameters of a per se taking, the question becomes
whether the claimant is subject to a burden “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). There is no evidence
in the record that other property owners in the surrounding vicinity have similarly been burdened
by the preservation of art on their property. Since that is the case, it is likely that Lassiter has
been put at a unique disadvantage among other local real estate developers, who are free to
expand and modernize their property as they see fit. Meanwhile, the interest being advanced is
purportedly the moral rights of artists, which is a cause whose cost that should be “borne by the
public as a whole,” as opposed to individual property owners such as Lassiter. Id; Carter v.
Helmsley-Spear, Inc. 71 F.3d 77, 80 (2d Cir. 1995).
17
F. VARA’s Mandate Of Preserving The Blue Pineapple Is A Regulatory Taking
Under The Penn Central Factor Test
If this Court does not find that the Blue Pineapple does not constitute a permanent
physical occupation of Lassiter’s property so as to be deemed a per se taking, this Court should
still find a regulatory taking under the Penn Central factor test. Penn Central Transportation Co.
v. New York City, 438 U.S. 104, 124 (1978). In Lingle v. Chevron U.S.A. Inc., this Court
concluded that a “government regulation of private property may, in some instances, be so
onerous that its effect is tantamount to a direct appropriation or ouster—and that such
‘regulatory takings' may be compensable.” 544 U.S. 528, 538 (2005). In order to determine
whether a government regulation is a taking, this Court has utilized an “ad hoc inquiry”
controlled by the Penn Central test, where three factors are significant: the extent to which the
action interferes with reasonable investment-backed expectations; the economic impact of the
regulation on the property; and the character of the government action. Penn Central, 438 U.S. at
123; see also Youpee v. Babbitt, 67 F.3d 194, 199 (1995).
i. VARA’s Mandate Interferes Substantially With Lassiter’s Reasonable
Investment-Backed Expectations
VARA has unexpectedly burdened a property which Lassiter, a prominent real estate
developer, purchased in order to gain profit in renting out office space. R. at 2. Lassiter
purchased the property in 1989, before VARA had been passed. Id. Lassiter purchased the
property with the expectation that the Blue Pineapple could be removed if the need arose to
modernize or alter the property for economic gain. Id. at 27. Lassiter did not have the
opportunity to negotiate into the price of the property the fact that the Blue Pineapple would
18
have to remain on the property for what could be several decades, a deprivation which should
weigh heavily into the takings analysis. Id.
ii. VARA’s Requirements Result A Substantial Economic Impact On The
Property
Although the Blue Pineapple currently holds the esteem of the community, there is
nothing to suggest that removing the statue in favor of a modernized and larger office building
would not bring more profit to Lassiter than keeping the Blue Pineapple on the premises. R. at 4.
As stated previously, the ability to remove the pineapple in favor of a more profitable land
development is one that Lassiter believed he had when purchasing the property. Id. at 2.
An argument may be made that there is no interference with investment expectations,
because the Blue Pineapple increases the property value of the property. First, there is no
evidence of this in the record. Second, even if the Blue Pineapple could be shown to increase the
value of the property, this does not amount to compensation under the takings clause, because
Lassiter had already paid for that increase in value when purchasing the property. Bensen at
1130-31.
iii. Public Interests Advanced By VARA Do Not Trump Considerations Of The
Legislation’s Effect On The Property Owner
Although the intent of VARA was stated as “protect[ing] the moral rights of certain
visual artists,” and there is no dispute as to whether such rights are advanced by the statute, this
cannot be the only consideration when evaluating a takings claim. Bensen at 1129. As stated in
Lingle, “whether a regulation of private property is effective in achieving some legitimate public
purpose” is only one consideration alongside the “magnitude or character of the burden a
19
particular regulation imposes upon private property rights or how any regulatory burden
is distributed among property owners.” 544 U.S. 528, 529 (2005). Therefore, the protection of
moral rights that is furthered by VARA should be weighed against the character of the
occupation, as well as weighed against the property rights infringed upon by VARA.
iv. Protecting Property Rights Serves A More Essential Public Interest Than
The Protection Of Artists’ Moral Rights
The moral rights of artists advanced by VARA are outweighed by the need to protect the
property rights so inherent as to be engrained in the Constitution. Quality King Distributors, Inc.
v. L’anza Research Intern, Inc., 523 U.S. 135, (1998); U.S. Const. amend. V. The Fifth
Amendment states that no person may be deprived of “property, without due process of law; nor
shall private property be taken for public use, without just compensation.” U.S. Const. amend.
V. This Court has repeatedly demonstrated its commitment to preserving property rights and has
noted that the right to exclude others from one’s property is one of the most essential rights held
by private property owners. Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979).
In the case at bar, Lassiter has been coerced into preserving a work of art on his own
property, the creation of which he did not allow. R. at 2-3. Even though Lassiter still holds the
option “to dispose of the occupied space by transfer or sale, the permanent occupation of that
space by a stranger would ordinarily empty the right of any value, since the purchaser will also
be unable to make any use of the property.” Fresh Pond Shopping Center, Inc. v. Callahan, 464
U.S. 875, 878 (1983) (internal quotations omitted). Additionally, a deprivation on even “one of
the sticks in the bundle of rights” traditionally held by property owners has previously been
deemed by the Ninth Circuit Court of Appeals in Youpee as such a serious assault on
constitutionally-imbued property rights as to be deemed a taking mandating compensation,
20
regardless of the public interest furthered by the regulation. 67 F.3d 194, 200 (1995). In the case
at bar, Lassiter’s essential right to exclude others from the property has been removed from him
by the provisions of VARA. As in Babbitt, Lassiter has been deprived of the “essential stick” of
excluding others from his property, thereby necessitating a takings finding regardless of the
public interest served by VARA.
Moreover, a ruling for Spencer in this case may prevent future property owners from
allowing public art to be installed on the property for fear of the limitations imposed upon them
by VARA, thereby curtailing the rights of artists, contrary to the goals of VARA. Bensen at 1129
(1996). Alternatives such as issuing subsidies to property owners who voluntarily preserved
works of art on their property would reconcile the goals of both advancing the moral rights of the
artist and protecting property rights of owners. R. at 12.
v. Even If The Government Action Is Found To Be Temporary In Nature, This
Does Not Deter A Finding Of A Taking
Since decisions during World War II, this Court has “rejected the argument that
government action must be permanent to qualify as a taking.” Arkansas Game and Fish Com’n.
v. U.S., 133 S.Ct. 511, 519 (2012). This is because “once the government's actions have worked
a taking of property, no subsequent action by the government can relieve it of the duty to provide
compensation for the period during which the taking was effective.” Id. (internal quotations
omitted). Therefore, even if this Court determines that the provisions of VARA create a
temporary occupation instead of a permanent one, the protection of property rights compels a
finding of a taking subject to compensation for the duration that the Blue Pineapple remains on
Lassiter’s property.
21
G. Permission Given By A Previous Property Owner Does Not Prevent Finding Of
A Taking
In Palazzolo v. Rhode Island, this Court rejected the notion that “a purchaser or a
successive title holder like Spencer is deemed to have notice” of a restriction and is therefore
“barred from claiming that it effects a taking.” 533 U.S. 606, 608 (2001). Such a finding would
“put an expiration date on the Takings Clause,” because it would ensure the government
immunity from takings claims so long as the property had transferred title before the claim was
made, regardless of how unreasonable the government restriction was deemed to be. Id.
Permission given by a property owner constitutes a revocable license which, when
converted into a permanent regulation by the government, still constitutes a taking. In Loretto,
the defendant cable companies had previously obtained permission from property owners in
order to install the cable boxes. 458 U.S. at 422. In order to expedite the process, the state passed
a law allowing the cable companies to proceed with installation, which was the subject of the
suit. In ruling that the installation was still a taking, the court proved that prior license given by
an owner does not void a takings claim when that license is then transformed into a permanent
physical invasion mandated by the government. Id. at 423. The case at bar is distinguishable
from Yee v. City Of Escondido, CA., because the court’s rejection of a takings claim based on
permission granted by the property owner was a function of the fact that the regulation in
question regulated the use of the property, and was not a per se taking as is the case here. 503
U.S. 519, 532 (1992).
22
No. 14-1986
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
______________
______________
APPENDIX
TO BRIEF OF RESPONDENT
______________
TEAM: R
ATTORNEYS FOR THE RESPONDENT
APPENDIX
TABLE OF CONTENTS
The Visual Artists Rights Act of 1990 (VARA), 17 U.S.C. § 106A …………………………… c
b
App. A
_________________________
The Visual Artists Rights Act of 1990
Pub. L. No. 101-650, §§ 601-610, 104 Stat. 5089, 5128-33, (codified in various sections of 17
U.S.C.)
_________________________
17 United States Code 106A
VISUAL ARTISTS RIGHTS ACT
§ 106A. RIGHTS OF CERTAIN AUTHORS TO ATTRIBUTION AND INTEGRITY
(a) Rights of attribution and integrity. Subject to section 107 and independent of the
exclusive rights provided in section 106 the author of a work of visual art-(1) shall have the right-(A) to claim authorship of that work, and
(B) to prevent the use of his or her name as the author of any work of
visual art which he or she did not create;
(2) shall have the right to prevent the use of his or her name as the author of the
work of visual art in the event of a distortion, mutilation, or other modification of
the work which would be prejudicial to his or her honor or reputation; and
(3) subject to the limitations set forth in section 113(d), shall have 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, mutilation, or modification of that work is a
violation of that right, and
(B) to prevent any destruction of a work of recognized stature, and any
intentional or grossly negligent destruction of that work is a violation of
that right.
(b) Scope and exercise of rights. Only the author of a work of visual art has the rights
conferred by subsection (a) in that work, whether or not the author is the copyright
owner. The authors of a joint work of visual art are co-owners of the rights conferred by
subsection (a) in that work.
(c) Exceptions.
(1) The modification of a work of visual art which is a result of the passage of
time or the inherent nature of the materials is not a distortion, mutilation, or other
modification described in subsection (a)(3)(A).
c
(2) The modification of a work of visual art which is the result of conservation, or
of the public presentation, including lighting and placement, of the work is not a
destruction, distortion, mutilation, or other modification described in subsection
(a)(3) unless the modification is caused by gross negligence.
(3) The rights described in paragraphs (1) and (2) of subsection (a) shall not apply
to any reproduction, depiction, portrayal, or other use of a work in, upon, or in
any connection with any item described in subparagraph (A) or (B) of the
definition of “work of visual art” in section 101, and any such reproduction,
depiction, portrayal, or other use of a work is not a destruction, distortion,
mutilation, or other modification described in paragraph (3) of subsection (a).
(d) Duration of rights.
(1) With respect to works of visual art created on or after the effective date set
forth in section 610(a) of the Visual Artists Rights Act of 1990, the rights
conferred by subsection (a) shall endure for a term consisting of the life of the
author.
(2) With respect to works of visual art created before the effective date set forth in
section 610(a) of the Visual Artists Rights Act of 1990, but title to which has not,
as of such effective date, been transferred from the author, the rights conferred by
subsection (a) shall be coextensive with, and shall expire at the same time as, the
rights conferred by section 106.
(3) In the case of a joint work prepared by two or more authors, the rights
conferred by subsection (a) shall endure for a term consisting of the life of the last
surviving author.
(4) All terms of the rights conferred by subsection (a) run to the end of the
calendar year in which they would otherwise expire.
(e) Transfer and waiver.
(1) The rights conferred by subsection (a) may not be transferred, but those rights
may be waived if the author expressly agrees to such waiver in a written
instrument signed by the author. Such instrument shall specifically identify the
work, and uses of that work, to which the waiver applies, and the waiver shall
apply only to the work and uses so identified. In the case of a joint work prepared
by two or more authors, a waiver of rights under this paragraph made by one such
author waives such rights for all such authors.
(2) Ownership of the rights conferred by subsection (a) with respect to a work of
visual art is distinct from ownership of any copy of that work, or of a copyright or
any exclusive right under a copyright in that work. Transfer of ownership of any
copy of a work of visual art, or of a copyright or any exclusive right under a
copyright, shall not constitute a waiver of the rights conferred by subsection (a).
Except as may otherwise be agreed by the author in a written instrument signed
by the author, a waiver of the rights conferred by subsection (a) with respect to a
work of visual art shall not constitute a transfer of ownership of any copy of that
d
work, or of ownership of a copyright or of any exclusive right under a copyright
in that work.
e