Team Z
IN THE
JANUARY TERM 2015
SHAWN SPENCER,
Petitioner,
v.
CARLTON LASSITER,
Respondent.
On Writ of Certiorari to the
Supreme Court of the United States
BRIEF FOR RESPONDENT
Counsel for the Respondent
January 21, 2015
QUESTIONS PRESENTED
1. Under the First Amendment of the United States Constitution, can VARA
withstand strict scrutiny when it compels speech and alters traditional copyright
protections by granting a right of integrity to Mr. Spencer requiring Mr. Lassiter
to display the sculpture, Blue Pineapple, on his property?
2. Is VARA constitutional under a heightened scrutiny analysis as a content-neutral
regulation on the First Amendment freedom of expression by granting Mr.
Spencer a right of integrity mandating the display of Blue Pineapple?
3. Does VARA establish an uncompensated categorical physical taking in violation
of the Fifth Amendment of the United States Constitution by allowing the
sculpture, Blue Pineapple, to physically occupy a portion of Mr. Lassiter’s
property?
4. Under a Penn Central balancing, does VARA create an uncompensated noncategorical regulatory taking when the statute grants Mr. Spencer a right of
integrity requiring the preservation of the sculpture, Blue Pineapple, on Mr.
Lassiter’s property?
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ............................................................................................ iv
OPINIONS BELOW ........................................................................................................ vii
JURISDICTIONAL STATEMENT ................................................................................. vii
STANDARD OF REVIEW ............................................................................................. vii
STATEMENT OF CASE ................................................................................................... 1
Statement of the Facts ............................................................................................ 1
Procedural History .................................................................................................. 2
SUMMARY OF THE ARGUMENT ................................................................................. 2
ARGUMENT ..................................................................................................................... 4
I.
VARA’S GRANT OF A RIGHT OF INTEGRITY TO VISUAL ARTISTS
PREVENTING THE REMOVAL OF ARTWORK LOCATED ON MR.
LASSITER’S PROPERTY RESULTS IN COMPELLED SPEECH IN
VIOLATION OF THE FIRST AMENDMENT .............................................. 4
A. VARA compels Mr. Lassiter to speak and alters the traditional contours of
copyright protection, which subjects the statute to a strict scrutiny standard
that it subsequently fails to pass ................................................................. 6
1. VARA’s requirement that Mr. Lassiter keep Blue Pineapple on his
property creates compelled speech, and triggers strict scrutiny ............ 7
2. Strict scrutiny applies because VARA alters traditional contours of
copyright law ........................................................................................ 9
3. VARA fails under strict scrutiny because it does not serve a
compelling governmental purpose and is not narrowly tailored to
achieve its alleged aim ....................................................................... 11
a. Temporarily protecting a living artist’s right to prevent destruction
to a narrow range of artwork fails as a compelling governmental
purpose ......................................................................................... 11
b. VARA lacks narrow tailoring to achieve its objectives as less
restrictive methods of protecting public art exist and VARA overly
burdens Mr. Lassiter’s right to artistic expression ....................... 13
B. Intermediate scrutiny does not apply because VARA is content-neutral
and, even if it did apply, VARA is still unconstitutional ......................... 15
1. VARA protects only popular artwork, which means it is not contentneutral and, as a result, intermediate scrutiny does not apply ............ 15
ii
2. In allowing living artists to prevent destruction of certain kinds of
artwork, VARA fails to serve a substantial governmental interest and
overly burdens Mr. Lassiter’s rights of artistic expression ................ 16
II. VARA’S GRANT OF INTEGRITY TO VISUAL ARTISTS PREVENTING
REMOVAL OF ARTWORK LOCATED ON MR. LASSITER’S
PROPERTY RESULTS IN AN UNCOMPENSATED TAKING IN
VIOLATION OF THE FIFTH AMENDMENT ............................................ 17
A. The Twelfth Circuit properly found that VARA requires Blue Pineapple to
remain affixed to Mr. Lassiter’s property, thereby establishing a
categorical taking in violation of the Fifth Amendment .......................... 18
1. Blue Pineapple physically occupies Mr. Lassiter’s property ............. 19
2. Blue Pineapple permanently occupies Mr. Lassiter’s property ......... 21
B. The Twelfth Circuit properly found that even if VARA did not create a
per se categorical taking, VARA operates as a non-categorical regulatory
taking in violation of the Fifth Amendment and should be affirmed ....... 23
1. VARA’s devaluing economic impact on the Marlowe weighs in favor
of a regulatory taking ......................................................................... 24
2. VARA’s substantial interference with Mr. Lassiter’s investmentbacked expectations weighs in favor of a regulatory taking .............. 26
3. VARA’s character as a government intrusion on Mr. Lassiter’s
property rights weighs in favor of a regulatory taking ....................... 28
CONCLUSION ................................................................................................................ 30
iii
TABLE OF AUTHORITIES
Supreme Court of the United States
Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977) ............................................................. 5
Armstrong v. U.S., 364 U.S. 40 (1960) ............................................................................ 17
Brown v. Entm't Merchants Ass'n, 131 S. Ct. 2729 (2011) ...................................... 4, 6, 12
Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984) .................................... 15
Dolan v. City of Tigard, 512 U.S. 374 (1994) .................................................................. 19
E. Enters. v. Apfel, 524 U.S. 498 (1998) .......................................................................... 29
Eldred v. Ashcroft, 537 U.S. 186 (2003) .............................................................. 5, 6, 8, 10
Golan v. Holder. 132 S. Ct. 873 (2012) ....................................................................... 9, 10
Griggs v. Allegheny County Pa., 369 U.S. 84 (1962) ...................................................... 21
Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) .................... 7
Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557 (1995) .... 5, 7
Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470 (1987) ........................ 23
Kirby Forest Indus., Inc. v. U.S., 467 U.S. 1 (1984) ........................................................ 28
Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005) ................................................. 18, 28
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) .................... 17-20
Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) ................................... 17
Nollan v. California, 483 U.S. 825 (1987) ....................................................................... 20
Palazzolo v. Rhode Island, 533 U.S. 606 (2001) ............................................................. 25
Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978) .......... 17, 22, 23, 24, 27
Pennsylvania Coal Co., 260 U.S. 393 (1922) .................................................................. 17
Police Dep't of City of Chicago v. Mosley, 408 U.S. 92 (1972) ...................................... 14
iv
PruneYard Shopping Ctr. v. Robins, 447 U.S. 74 (1980) ........................................ 5, 7, 23
Riley v. Nat'l Fed'n of the Blind of N. Carolina, Inc., 487 U.S. 781 (1988) ....................... 7
Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) .................................................. 25, 26
Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006) .......... 8
Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency,
535 U.S. 302 (2002) ........................................................................................ 26, 27
Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622 (1994) ............................. 5, 6, 14, 15, 16
U.S. v. Causby, 328 U.S. 256 (1946) ............................................................................... 20
U.S. v. Playboy Entm't Grp., Inc., 529 U.S. 803 (2000) .................................... 5, 6, 11, 13
Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc.,
425 U.S. 748 (1976) ............................................................................................. 14
Ward v. Rock Against Racism, 491 U.S. 781 (1989) ....................................................... 16
Wooley v. Maynard, 430 U.S. 705 (1977) .................................................................... 7, 16
Yee v. Escondido, 503 U.S. 519 (1992) ............................................................................ 21
United States Courts of Appeals
Appolo Fuels, Inc. v. U.S., 381 F.3d 1338 (Fed. Cir. 2004) ............................................. 25
Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996) ....................................................... 5
Carter v. Helmsley-Spear, Inc., 71 F.3d 77 (2d Cir. 1995) .................................... 9, 11, 28
Cienega Gardens v. U.S., 331 F.3d 1319 (Fed. Cir. 2003) .............................................. 27
ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915 (6th Cir. 2003) ............................................ 4
Good v. U.S., 189 F.3d 1355 (Fed. Cir. 1999) ................................................................. 25
Maritrans Inc. v. U.S., 342 F.3d 1344 (Fed. Cir. 2003) ................................................... 27
Martin v. City of Indianapolis, 192 F.3d 608 (7th Cir. 1999) ..................................... 10, 15
v
Yancey v. United States, 915 F.2d 1534 (Fed. Cir. 1990) .......................................... 23, 24
United States District Courts
Carter v. Helmsley-Spear, Inc., 861 F. Supp. 303 (S.D.N.Y. 1994) ................................. 28
Phillips v. Pemroke Real Estate, Inc., 288 F. Supp. 2d 89 (D. Mass. 2003)..................... 15
State Courts of Highest Authority
Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (Tex. 1998) .......................................... 25
U.S. Constitution Provisions
U.S. Const. amend. I ........................................................................................................... 3
U.S. Const. amend. V ........................................................................................................ 17
Federal Statutes
17 U.S.C. § 106A(a)(3)(B) ................................................................................................ 14
17 U.S.C. § 101 ............................................................................................................. 9, 11
17 U.S.C. § 411-12 .............................................................................................................. 9
17 U.S.C. § 504-05 .............................................................................................................. 9
Visual Artists Rights Act of 1990 (VARA),
Pub. L. No. 101-650, §§ 601-610, 104 Stat. 5089, 5128-33 (1990) ....................... 2
vi
OPINIONS BELOW
The opinion of the United States Court of Appeals for the Twelfth Circuit is
reported at Lassiter v. Spencer, No. 14-1986, R. 1 (12th Cir. Nov. 20, 2014).
JURISDICTIONAL STATEMENT
The decision of the Twelfth Circuit Court of Appeals was entered on November
20th, 2014. The Petition for writ of certiorari was granted by this Court. This Court has
jurisdiction pursuant to 28 U.S.C. § 1254(1) (2014).
STANDARD OF REVIEW
The standard of review is de novo, as this case involves a review of mixed
questions of law and fact. Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485,
499 (1984).
vii
STATEMENT OF THE CASE
Statement of the Facts
Respondent Carlton Lassiter presently owns a 50-story office building with a large
courtyard at the front of the building known as “the Marlowe” located in downtown DePaulia
City. R. 2. Mr. Lassiter purchased the property on June 6, 1989, from its previous owner, who
owned the property since the 1970s. R. 2. As part of a large-scale overhaul of the property in
1984, the previous owner commissioned Mr. Spencer to create artwork for the newly renovated
courtyard. R. 2.
Petitioner Shawn Spencer, a renowned visual artist, was commissioned by the previous
owner of the Marlowe to design, create, and install artwork for the front courtyard of the
property. R. 3. Under the agreement with the previous owner, Mr. Spencer was paid as a
contractor, not as an employee. R. 3. As such Blue Pineapple was not a work made for hire. R. 3.
Additionally, Mr. Spencer retained title and copyright to Blue Pineapple. R. 3. The agreement
failed to establish how long Blue Pineapple would be installed in the courtyard and failed to
provide provisions regarding removal. R. 3.
Blue Pineapple is an elaborate, post-modern, three-dimensional abstract bronze sculpture
that vaguely resembles a pineapple, a popular cartoon character, or the actor Malcom McDowell.
R. 3. Over time, the bronze sculpture acquired a blue patina, hence the name “Blue Pineapple.”
R. 3. The sculpture stands 50 feet tall and weighs 168 tons. R. 3. The sculpture was completed
and installed on February 28, 1986, and became a hit with the population of DePaulia. R. 3-4.
Blue Pineapple has become the most recognized work of public art in DePaulia. R. 4.
In 2013, Mr. Lassiter hired Brannigan & Woody to develop a remodeling plan for the
Marlowe and its courtyard, as the property was in need of modernization nearly 30 years after its
1
last purchase. R. 4. Brannigan & Woody’s top architect, Buzz McNab, recommended removing
Blue Pineapple and completely revitalizing the building and courtyard, making it more appealing
and more efficient for existing and prospective tenants. R. 4. Mr. Lassiter mentioned his intent to
remove Blue Pineapple from the courtyard as part of the proposed renovations in an interview
with a local paper. R. 4. A the majority of DePaulians oppose removal of Blue Pineapple. R. 4.
Procedural History
Mr. Spencer brought an action in the United States District Court for the Eastern District
of DePaulia seeking an injunction to prevent removal of Blue Pineapple from the Marlowe’s
courtyard. R. 4. The district court initially granted Mr. Spencer a temporary restraining order. R.
4. Mr. Spencer argued that Blue Pineapple cannot be removed from the courtyard without
destroying it, a claim that Lassiter concedes. R. 4. Mr. Spencer argued that his right of integrity,
granted to him under the Visual Artists Rights Act of 1990 (VARA), Pub. L. No. 101-650, §§
601-610, 104 Stat. 5089, 5128-33 (1990), trumped Mr. Lassiter’s First Amendment right against
compelled speech, as well as Mr. Lassiter’s Fifth Amendment protection from uncompensated
takings. R. 4-5.
The United States Court of Appeals for the Twelfth Circuit reversed the injunction for
Mr. Spencer, finding that VARA violated Mr. Lassiter’s First Amendment and Fifth Amendment
protections. R. 5. Mr. Spencer now appeals the decision of the Twelfth Circuit. This Court
granted certiorari on November 21, 2014.
SUMMARY OF THE ARGUMENT
This Court should affirm the opinion of the Twelfth Circuit for two reasons. First, the
Twelfth Circuit correctly concluded that VARA infringes on Mr. Lassiter’s First Amendment
right of free expression by preventing him from removing Blue Pineapple from the Marlowe.
2
Second, the Twelfth Circuit correctly found that VARA creates an uncompensated taking under
the Fifth Amendment by requiring that Mr. Lassiter retain Blue Pineapple.
The Twelfth Circuit correctly recognized that, as a sculpture, Blue Pineapple acts as
artistic expression and, thus, falls under the First Amendment. Additionally, the Twelfth Circuit
correctly held that strict scrutiny applied in this case. VARA compels Mr. Lassiter to speak
against his will by requiring him to keep Blue Pineapple on his property. Further, the temporary
right of an artist to prevent the destruction of certain visual artwork fails as a compelling
governmental purpose. Further, VARA alters traditional contours of copyright protection, which
this Court has suggested, triggers a strict scrutiny analysis. VARA’s grant of a right of integrity
creates a novel right of limited applicability benefitting very few and is, therefore,
underinclusive. Additionally, VARA is not narrowly tailored as it unnecessarily restricts Mr.
Lassiter’s speech when less restrictive options are available.
VARA cannot be categorized as a content-neutral regulation in that it protects only
specific types of speech; therefore intermediate scrutiny does not apply. The Twelfth Circuit
properly recognized that even if intermediate scrutiny applied, VARA still fails. Providing artists
with the right to prevent the destruction of certain kinds of artwork fails as a substantial
governmental purpose. VARA unnecessarily over-burdens speech by forcing Mr. Lassiter to
convey an artistic expression against his will. Therefore, the Twelfth Circuit correctly held that
VARA infringes on Mr. Lassiter’s First Amendment rights.
The Twelfth Circuit additionally found that VARA violates Mr. Lassiter’s Fifth
Amendment rights, thereby accomplishing a categorical physical taking or a non-categorical
regulatory taking. VARA authorizes a permanent physical occupation of Mr. Lassiter’s property
by requiring that Blue Pineapple indefinitely remain affixed to Mr. Lassiter’s property. By
3
requiring Mr. Lassiter to forego the use of his constitutionally protected bundle of property
ownership rights, the Twelfth Circuit properly determined that Blue Pineapple’s presence
established an uncompensated categorical physical taking.
The Twelfth Circuit additionally analyzed VARA from a non-categorical approach.
Under a non-categorical takings analysis, the Twelfth Circuit correctly found that VARA creates
an uncompensated regulatory taking of Mr. Lassiter’s property. Blue Pineapple diminishes the
economic value of Mr. Lassiter’s property by reducing the resale value, as well as the property’s
continued use as a business complex. Additionally, Blue Pineapple’s mandated presence
interferes with Mr. Lassiter’s reasonable investment-backed expectations in purchasing and the
continued use of the property. Finally, VARA creates a government authorized physical intrusion
on Mr. Lassiter’s land, which, which, on balance, creates a non-categorical regulatory taking.
ARGUMENT
I.
VARA’S GRANT OF A RIGHT OF INTEGRITY TO ARTISTS PREVENTING
REMOVAL OF ARTWORK LOCATED ON MR. LASSITER’S PROPERTY
COMPELS SPEECH IN VIOLATION OF THE FIRST AMENDMENT
VARA requires Mr. Lassiter to retain visual artwork located on his property in violation
of his First Amendment rights under the United States Constitution. The First Amendment of the
United States Constitution states that “Congress shall make no law … abridging the freedom of
speech, or of the press….” U.S. Const. amend. I. First Amendment protections apply to speech,
writings and “other mediums of expression, including music, pictures … and sculptures.” ETW
Corp. v. Jireh Pub., Inc., 332 F.3d 915, 924 (6th Cir. 2003; See Brown v. Entm't Merchants
Ass'n, 131 S. Ct. 2729 (2011) (holding that video games also merit First Amendment protection).
As a sculpture, Blue Pineapple is a recognized form of artistic expression. R. 3.
4
An expression does not need to make an overt statement to fall under the umbrella of the
First Amendment. Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557,
569 (1995); Bery v. City of New York, 97 F.3d 689, 694 (2d Cir. 1996) (“The First Amendment
shields more than political speech”). Therefore, Blue Pineapple’s lack of a specific statement or
message does not exclude the sculpture from First Amendment protections. Artistic expression
merits as much First Amendment protection as any other form of expression. Abood v. Detroit
Bd. of Ed., 431 U.S. 209, 231 (1977). Accordingly, Mr. Lassiter’s right to artistic expression
receives the full protection of the First Amendment.
The Twelfth Circuit properly found that strict scrutiny should apply in the case at bar.
Strict scrutiny applies when speech is compelled or when a law alters the traditional contours of
copyright protection. Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 642 (1994); Eldred v.
Ashcroft, 537 U.S. 186, 221 (2003). VARA compels Mr. Lassiter to speak by forcing him to
keep a form of artistic expression on his property. PruneYard Shopping Ctr. v. Robins, 447 U.S.
74, 98 (1980). Additionally, VARA alters traditional copyright law by granting artists a new set
of protections. Under strict scrutiny, VARA must serve a compelling governmental purpose and
be narrowly tailored to serve that purpose. U. S. v. Playboy Entm't Grp., Inc., 529 U.S. 803, 813
(2000). VARA does not serve a compelling governmental purpose as it primarily benefits artists,
only prevents temporary destruction of certain artwork and is underinclusive. Additionally,
VARA lacks narrow tailoring because less intrusive options are available and VARA unduly
restricts Mr. Lassiter’s speech.
5
A.
VARA compels Mr. Lassiter to speak and alters the traditional contours of
copyright protection, which subjects the statute to a strict scrutiny standard that it
subsequently fails to pass
This Court should affirm the Twelfth Circuit’s application of strict scrutiny and find that
VARA fails to pass that exacting standard. Strict scrutiny applies when speech is compelled.
Turner Broad. Sys., 512 U.S. at 642. VARA compels Mr. Lassiter to speak by requiring him to
keep Blue Pineapple on his property. Additionally, this Court has suggested that strict scrutiny is
proper when a law exceeds traditional contours of copyright protection. Eldred, 537 U.S. at 221.
VARA alters traditional contours of copyright protection by granting artists a new set of rights.
Under a strict scrutiny analysis, a statute accords with the Constitution only when it
serves a compelling governmental interest, is narrowly tailored to achieve those ends and is the
least restrictive measure available. Playboy Entm't Grp., Inc., 529 U.S. at 813. VARA fails the
first prong of the strict scrutiny test as it merely serves the individual rights of artists, only
temporarily prevents the destruction of works of visual art, and is underinclusive. Further,
VARA fails the second prong of the strict scrutiny test as it serves artists’ interests above any
other public interest, unnecessarily restricting Mr. Lassiter’s rights—particularly, when
alternative, less restrictive means may be employed. Therefore, the Twelfth Circuit correctly
held that VARA, as applied, does not pass strict scrutiny and violates Mr. Lassiter’s First
Amendment rights.
1.
VARA’s requirement that Mr. Lassiter keep Blue Pineapple on his
property creates compelled speech, and triggers strict scrutiny
By requiring that Mr. Lassiter retain Blue Pineapple on his property, VARA mandates
that he express himself against his will, necessitating a strict scrutiny analysis of VARA. “At the
heart of the First Amendment lies the principle that each person should decide for himself or
herself the ideas and beliefs deserving of expression, consideration, and adherence.” Turner
6
Broad. Sys., Inc., 512 U.S. at 641. Consequently, the most exacting scrutiny applies when a law
compels someone to speak. Id. First Amendment rights include the right to choose not to speak,
as this Court recognized in Wooley v. Maynard. Wooley, 430 U.S. at 714; see also Harper &
Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 559 (1985). The right not to speak
facts and opinions alike. Hurley, 515 U.S. at 573 (holding that a law requiring parade organizers
to allow gay, lesbian and bisexual individuals to voice their beliefs at a parade violated the
organizers’ First Amendment rights). In addition, this right is available not merely to the press,
but to the general public as well. Id. at 574. All of this Court’s prior precedents indicate that
freedom from compelled speech extends to all forms of expression, including artistic expression
such as Blue Pineapple.
It is true that Mr. Spencer was invited to install Blue Pineapple. R. 2-3. The installation
of the sculpture was not compelled. What amounts to compelled speech is the mandated presence
of Blue Pineapple at the Marlowe. The compulsion of speech triggers strict scrutiny, irrespective
of what is “said.” PruneYard Shopping Ctr., 447 U.S. at 98; See Riley v. Nat'l Fed'n of the Blind
of N. Carolina, Inc., 487 U.S. 781, 798 (U.S. 1988). In either situation, strict scrutiny applies as
VARA compels Mr. Lassiter to speak through displaying Blue Pineapple on his property.
Furthermore, Blue Pineapple contains several potential non-political messages. First, the
sculpture is an example of post-modern art. R. 3. Its placement on Mr. Lassiter’s property could
be seen as a sign of his support or admiration of post-modern art. Second, the sculpture is widely
recognized and visited, and Mr. Spencer is a critically acclaimed artist. R. 3-4. Blue Pineapple’s
presence on Mr. Lassiter’s property could be viewed as an endorsement of Mr. Spencer’s artistic
talent and viewpoint. Third, the sculpture has been compared to a cartoon character and an actor.
R. 3. Viewers who perceive either might come to the conclusion that Mr. Lassiter is a fan of one
7
of them. Strict scrutiny applies because in any of the above scenarios, Blue Pineapple compels
Mr. Lassiter to use his property to funnel Mr. Spencer’s artistic expression.
Unlike other forms of expression, artistic expression often requires unity of theme. Art of
one type can “clash” with other types of art, meaning that one form of artistic expression can
interfere with other forms of artistic expression. Thus, this case is distinguishable from Rumsfeld
v. Forum for Academic & Institutional Rights, Inc., where this Court held that allowing military
recruiters on a law school campus did not interfere with the school’s free speech rights. 547 U.S.
47, 64 (2006). Artistic expression is holistic and cannot be compartmentalized and separated
from the speech around it, unlike political expression, for instance. Blue Pineapple’s presence at
the Marlowe combines with and alters any other artistic messages expressed from that property.
This interferes with any other artistic expression Mr. Lassiter wishes to express. For these
reasons the Twelfth Circuit correctly applied a strict scrutiny analysis.
2.
Strict scrutiny applies because VARA alters traditional contours of
copyright law
This Court should adopt a strict scrutiny analysis because VARA significantly alters
traditional copyright protections by granting new rights to artists. In the case of Eldred v.
Ashcroft this Court suggested that when a law alters the “traditional contours of copyright
protection” a more demanding analysis would be appropriate. 537 U.S. at 221.
In Eldred the Court rejected a claim that the Copyright Term Extension Act of 1998
(“CTEA”) was an unconstitutional infringement on the First Amendment. 537 U.S. at 219.
CTEA extended the duration of copyright protection of certain artistic works that had already
fallen into the public domain. Id. Justice Ginsberg, writing for the majority, noted that the First
Amendment and the Copyright Clause of the U.S. Constitution were enacted in close proximity
to one another. Id. The Court further explained that “[t]his proximity indicates that, in the
8
Framers' view, copyright's limited monopolies are compatible with free speech principles.” Id.
Heightened scrutiny would only be appropriate if a law altered the “traditional contours of
copyright protection.” Id. The Court rejected the call for the “imposition of uncommonly strict
scrutiny” because CTEA did not alter copyright’s traditional contours. Id.
This Court reaffirmed the suggestion to apply heightened scrutiny for alterations to
traditional copyright protections in Golan v. Holder. 132 S. Ct. 873, 890 (2012). In Golan,
publishers brought a constitutional challenge against the Uruguay Round Agreements Act
(“URAA”). Id. at 875. URAA granted copyright protection to works from Berne Convention
signatory countries which had not enjoyed copyright protection before. Id. The Golan Court held
that the effect of URAA was similar to that of the CTEA in that it did not alter “traditional
contours of copyright protection,” and did not require heightened scrutiny. Id. at 890. Any
substantive changes to the monopolistic nature of copyright poses a large potential threat to
freedom of expression, which justifies the application of strict scrutiny. Therefore, a law which
alters traditional contours of copyright protection requires a strict scrutiny analysis.
VARA connects to and mimics copyright law, yet does not follow all of its rules or
principles. An artist does not have to register a work to seek protection under § 106A. 17
U.S.C.A. §§ 411-12 (West). Yet at the same time, works not subject to copyright protection
cannot be protected under § 106A. 17 U.S.C.A. § 101 (West). In addition, VARA allows artists
to recover some remedies, including attorney’s fees, under the Copyright Act. 17 U.S.C.A. §§
504-05 (West). However, VARA establishes three new rights that go beyond traditional
copyright: “the right of attribution, the right of integrity and, in the case of works of visual art of
‘recognized stature,’ the right to prevent destruction.” Carter v. Helmsley-Spear, Inc., 71 F.3d
77, 83 (2d Cir. 1995). Due to these variances from traditional copyright protections, the Seventh
9
Circuit noted that “VARA seems to be a stepchild of our copyright laws.” Martin v. City of
Indianapolis, 192 F.3d 608, 611 (7th Cir. 1999).
VARA deviates the furthest from traditional copyright law in granting artists the right to
prevent destruction. The statute grants an artist rights over property that belong to another
property owner. Nothing similar has ever existed in traditional copyright law, which normally
prevents someone from “assert[ing] the right to make other people's speeches.” Eldred, 537 U.S.
at 221. Essentially, copyright protections traditionally prevented someone from speaking through
the use of another’s property. Alternatively, the right to prevent destruction requires Mr. Lassiter
to use his own property to speak on behalf of Mr. Spencer. VARA’s creation of new rights
establish a complete reversal of the original purpose of copyright law. A greater alteration to
“traditional contours of copyright protection” is difficult to imagine.
The case at bar easily distinguishes itself from Eldred and Golan. In both of those cases
plaintiffs sought access to work that Congress removed from the public domain. Eldred, 537
U.S. at 193; Golan, 132 S. Ct. at 875. The plaintiffs in Eldred and Golan sought the right to use
artistic works originally belonging to other authors. Here, VARA forces Mr. Lassiter, by law, to
use speech originally belonging to Mr. Spencer. R. 3-4. In Eldred, the Court noted that “CTEA
… does not oblige anyone to reproduce another's speech against the carrier's will.” 537 U.S. at
221. This “obligation” is exactly what VARA requires. The Eldred Court warned that “a
particular statute that exceeds proper Copyright Clause bounds may set [the] Clause and [the
First] Amendment at cross-purposes, thereby depriving the public of the speech-related benefits
that the Founders, through both, have promised.” 537 U.S. at 244. VARA, as such a statute,
performs in opposition of that warning and this Court should apply a strict scrutiny analysis.
10
3.
VARA fails under strict scrutiny because it does not serve a
compelling governmental purpose and is not narrowly tailored to
achieve its alleged aim
Under a strict scrutiny analysis, a statute accords with the Constitution only when it
serves a compelling governmental interest and is narrowly tailored to achieve those ends.
Playboy Entm't Grp., Inc., 529 U.S. at 813. If less restrictive measures are available, those means
must be taken. Id. The statute fails to serve a compelling governmental purpose because it
merely advances the artists’ individual rights, only temporarily prevents the destruction of visual
artwork and is vastly underinclusive. Further, VARA lacks narrow tailoring because it serves the
artists’ interests above all other interests, fails to account for the speech rights of others and less
restrictive options are available. Therefore, the Twelfth Circuit correctly held that VARA, as
applied, does not pass strict scrutiny and infringes on Mr. Lassiter’s First Amendment rights.
a.
Temporarily protecting a living artist’s right to prevent destruction
to a narrow range of artwork fails as a compelling governmental
purpose
VARA does not a serve a compelling governmental interest by granting the “right to
prevent destruction.” Carter, 71 F.3d at 83. Only works of visual art are covered by VARA. 17
U.S.C.A. § 101 (West). Section 106A(a)(3)(B) grants all of its newly created rights to the
original artist only, not to anyone else. 17 U.S.C.A. § 106A (West). Additionally, these rights
only last for the lifetime of the author. Id. As a result, the right to prevent destruction only
provides a temporary protection. A compelling governmental interest in providing a temporary
prevention of destruction of visual artwork is inapposite.
By limiting these rights to the original author and only for the duration of his or her
lifetime, VARA only directly benefits artists. Further, moral rights, like the right to prevent
destruction of an author’s work, occupy a new development in American legal jurisprudence. R.
11
6-7. The novelty in recognizing these protections weakens the argument that VARA serves a
compelling governmental interest, because if a compelling need to temporarily preserve visual
artwork existed previously, these rights would have been created sooner.
In addition, artists maintain the option to waive their rights under VARA. 17 U.S.C.A. §
106A (West). If VARA really seeks to protect culturally significant artwork, artists would not be
allowed to waive these protections. If the government aims to prevent the destruction of visual
artwork, this interest cannot be compelling because the temporary stay and optional waiver only
averts destruction for a limited period of time. As such, VARA’s limited reach cannot serve a
compelling governmental purpose. See Brown, 131 S. Ct. at 2740 (2011) (“Underinclusiveness
raises serious doubts about whether the government is in fact pursuing the interest it invokes”).
The burden of showing that a compelling governmental interest exists presents a
demanding standard that is difficult to meet. Brown, 131 S. Ct. at 2738 (holding that a California
law restricting the sale and rental of violent videogames to minors did not serve a compelling
governmental purpose, violating the First Amendment). Mere legislative assertions or judgments
are not enough to meet this standard. Id. Mr. Spencer fails to meet this standard in the case at
bar. Accordingly, the Twelfth Circuit correctly found that VARA lacks a compelling
governmental interest and fails the first prong of a strict scrutiny analysis.
b.
VARA lacks narrow tailoring to achieve its objectives as less
restrictive methods of protecting public art exist and VARA overly
burdens Mr. Lassiter’s right to artistic expression
The Twelfth Circuit rightly ruled that VARA fails the second prong of the strict scrutiny
analysis because it is not narrowly tailored to achieve its ends. One available alternative would
be to offer incentives to property owners to maintain and preserve significant works of art. For
example, treating the preservation of the art as a charitable action by the property owner,
12
prompting tax benefits. Another suggestion offered by the Twelve Circuit below would be the
creation of special conservation easements for the preservation of art. R. 12.
Landowners may opt out of the installation of such art for fear that they might not be able
to remove it. The art world is an ever changing field and property owners do not want to be seen
as “out of date.” Ultimately, a landowner’s fear that he or she may not be able to remove art
unnecessarily restricts potential artistic expression that landowner might otherwise engage in.
VARA’s waiver option only somewhat ameliorates this problem. Landowners would
only use artists willing to sign waivers. Further, there is always the possibility that a waiver
might be modified or eliminated at some point in time. More importantly, it does not help
property owners who owned the property before the passage of VARA. Property owners cannot
force the original artist to sign a waiver, meaning that if the artist won’t sign, landowners have
no recourse. By not protecting owners who purchased their properties before VARA’s passage,
the statute unnecessarily restricts their speech, as is the case for Mr. Lassiter.
A potentially narrower and more tailored approach should have included a “grandfather”
clause for property owners with a qualifying piece of artwork on their land prior to the passage
of VARA. Property owners who have works of visual art on their property should have been
exempted or given a grace period to acquire a waiver from the artist. In the event that an artist
declined to waive VARA protections, perhaps VARA should have required the artist to
repurchase the artwork. Alternatively, VARA should have excluded from protection those works
of visual art that cannot be moved.
The availability of these alternative means, which are less restrictive on expression,
demonstrates a lack of narrow tailoring. See Playboy Entm't Grp., Inc., 529 U.S. at 803 (holding
that a regulation requiring sexually explicit cable channels be scrambled or limited to certain
13
hours was not narrowly tailored because households could request that they be blocked).
Therefore, the Twelfth Circuit correctly held that VARA fails the second prong of strict scrutiny
and infringes upon Mr. Lassiter’s First Amendment rights.
B.
Intermediate scrutiny does not apply because VARA is content-neutral and, even
if it did apply, VARA is still unconstitutional
The Twelfth Circuit correctly held that even if intermediate scrutiny were to apply,
VARA would still infringe upon Mr. Lassiter’s First Amendment rights. Intermediate scrutiny
applies when a regulation is content-neutral. Turner Broad. Sys., Inc., 512 U.S. at 642. VARA
only protects artwork that is popular or accepted by the art community and is therefore not
content-neutral. Since VARA only aids living artists and overly burdens Mr. Lassiter’s right to
artistic expression, it fails to satisfy intermediate scrutiny and thus is unconstitutional.
1.
VARA protects only popular artwork, which means it is not contentneutral and, as a result, intermediate scrutiny does not apply
The Twelfth Circuit correctly ruled that intermediate scrutiny did not apply. Only when a
regulation or statute is content-neutral does intermediate scrutiny apply. Turner Broad. Sys., 512
U.S. at 642. A regulation or law is only content neutral when it is “justified without reference to
the content of the regulated speech.” Virginia State Bd. of Pharmacy v. Virginia Citizens
Consumer Council, Inc., 425 U.S. 748, 771 (1976). Government cannot favor popular popular
views nor can it disfavor controversial or unpopular views. Police Dep't of City of Chicago v.
Mosley, 408 U.S. 92, 96 (1972).
VARA only protects visual artwork which is of a “recognized stature” from destruction
and so is not content-neutral. 17 U.S.C. § 106A(a)(3)(B). Recognized stature is not defined under
VARA. However, courts have generally adopted the following requirements: “(1) that the visual
art in question has ‘stature,’ i.e., is viewed as meritorious, and (2) that this stature is recognized
14
by art experts, other members of the artistic community, or by some cross-section of society.”
Phillips v. Pemroke Real Estate, Inc., 288 F. Supp. 2d 89, 97 (D. Mass. 2003) (citing Martin, 192
F.3d 608, 612 (7th Cir.1999).
These requirements mean that only works acceptable to the public at large or certain
segments of the art community can be protected. Contrary to Judge Guster’s dissent in the court
below, VARA favors “specific content”- popular content. R. 20. Unpopular or unmeritorious
works cannot or will not be protected by VARA. VARA’s protections can only be justified in
reference to the actual content of the speech it aims to protect. Therefore, intermediate scrutiny
does not apply as VARA is not content-neutral.
2.
In allowing living artists to prevent destruction of certain kinds of
artwork, VARA fails to serve a substantial governmental interest and
overly burdens Mr. Lassiter’s rights of artistic expression
Assuming en arguendo that intermediate scrutiny applies, VARA still does not pass
constitutional muster. The Twelfth Circuit correctly determined that VARA does not serve a
substantial governmental interest and overly burdens Mr. Lassiter’s speech.
A statute is constitutional under Intermediate Scrutiny if it meets two separate prongs.
First, it must be “narrowly tailored to serve a significant governmental interest.” Clark v. Cmty.
for Creative Non-Violence, 468 U.S. 288, 293 (1984). Second, the restrictions the statute
allegedly places on “First Amendment freedoms [must be] no greater than is essential to the
furtherance of that interest” and must “leave open ample alternative channels for communication
of the information.” Turner Broad. Sys., Inc., 512 U.S. at 662; Cmty. for Creative Non-Violence,
468 U.S. at 293.
VARA serves only to protect living artists. It is true that protecting artists benefits society
by encouraging artists to create their works. However, an artist who has already created and sold
15
his or her work has already benefited from the protections offered by traditional copyright and
contract law. This rationale does not rise to the level of substantial governmental interests which
have survived intermediate scrutiny before. One such case was Turner Broadcasting Systems,
Inc. v. F.C.C., where the substantial governmental interest was assuring the public access to
multiple information sources. Turner Broad. Sys., Inc., 512 U.S. at 663 (holding that a federal
statute which required cable broadcasters to carry local broadcast stations was constitutional).
VARA also places greater than necessary burdens on First Amendment freedoms. VARA
affects the entire range of artistic expression that a landowner could hope to convey through his
or her property, unlike the limited burdens on speech in Ward v. Rock Against Racism. 491 U.S.
781, 800 (1989) (holding that a municipal regulation that limited the volume of music at a city
park did not violate the First Amendment). Landowners have the right to their own artistic
expression and VARA does not account for this. The right of landowners to speak freely on their
own property is just as valuable as an artist’s right to speak. See Wooley, 430 U.S. at 714. VARA
takes this right away from Mr. Lassiter and other landowners.
VARA fails to advance a significant governmental interest and unnecessarily restricts the
free speech rights of Mr. Lassiter. Accordingly, the Twelve Circuit correctly ruled that VARA
fails intermediate scrutiny and is unconstitutional as applied.
II.
VARA’S GRANT OF INTEGRITY TO VISUAL ARTISTS PREVENTING
REMOVAL OF ARTWORK LOCATED ON MR. LASSITER’S PROPERTY
RESULTS IN AN UNCOMPENSATED TAKING IN VIOLATION OF THE FIFTH
AMENDMENT
VARA’s grant of integrity to Mr. Spencer violates the Fifth Amendment’s grant of
protection to Mr. Lassiter against uncompensated government takings. Specifically, the Fifth
Amendment establishes that “[n]o person shall … be deprived of life, liberty, or property,
without due process of law; nor shall private property be taken for public use, without just
16
compensation.” U.S. Const. amend. V. A regulatory action may become a compensable taking
under the Fifth Amendment where the government interference has “gone too far.” Pennsylvania
Coal Co., 260 U.S. 393, 415 (1922). The Takings Clause protects private property owners
against government regulations that force individuals “to bear public burdens which, in all
fairness and justice, should be borne by the public as a whole. Armstrong v. U.S., 364 U.S. 40, 49
(1960). Courts have generally deemed a regulation a per se taking for Fifth Amendment
purposes where a law requires an owner to suffer a permanent physical interference with
property. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). Additionally, a
taking generally occurs where a regulation completely deprives an owner of “all economically
beneficial use” of the property. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1019
(1992). For challenges that fail to establish a permanent physical occupation or loss of all
economically beneficial use, Penn Central Transp. Co. v. New York City governs whether a
regulation amounts to a taking under the Fifth Amendment. 438 U.S. 104, 124 (1978).
VARA creates a permanent physical intrusion by allowing Blue Pineapple to remain
affixed to Mr. Lassiter’s property, thus amounting to a per se categorical taking in violation of
the Fifth Amendment. Even assuming VARA falls short of a categorical taking, VARA results in
a non-categorical regulatory taking under a Penn Central analysis. As such, the Twelfth Circuit
properly held that in aiming to protect visual artists and their works of art, VARA grossly
infringes on the rights of private property owners and should, therefore, be affirmed.
A.
The Twelfth Circuit properly found that VARA requires Blue Pineapple to remain
affixed to Mr. Lassiter’s property, thereby establishing an uncompensated
categorical taking in violation of the Fifth Amendment
Forcing Mr. Lassiter, through VARA’s grant of integrity, to preserve Blue Pineapple
eviscerates Mr. Lassiter’s constitutionally protected bundle of rights. The “right to possess, to
17
use[,]... to dispose” and to exclude have traditionally received protection under the Fifth
Amendment as rights inherent in property ownership. Loretto, 458 U.S. at 435. VARA squelches
most, if not all, of Mr. Lassiter’s constitutionally protected property rights. Lingle v. Chevron
U.S.A., Inc., 544 U.S. 528, 538 (2005). As established in Loretto, allowance of Manhattan’s
regulation requiring an installation of cable wires for the tenant’s benefit against the property
owner’s wishes was considered a taking under the Fifth Amendment due to the permanent
physical invasion of the property owner’s rights. 458 U.S. at 438. This physical intrusion on
private property by a third-party authorized by the government, established a categorical taking.
Id. at 426. Similarly, VARA allows Mr. Spencer to dictate Mr. Lassiter’s use of his property by
requiring that Blue Pineapple remain physically attached to Mr. Lassiter’s property for an
indefinite duration. Therefore, the Twelfth Circuit properly found that VARA creates a
categorical physical taking without compensation in violation of the Fifth Amendment.
1.
Blue Pineapple physically occupies Mr. Lassiter’s property
By requiring Blue Pineapple to remain attached to Mr. Lassiter’s property, VARA
eviscerates Mr. Lassiter’s rights as a property owner, ultimately resulting in a categorical
physical taking. In finding a taking, this Court established in Loretto that a Manhattan statute
requiring installation of cable wires on the roof and exterior wall of an apartment building
qualified as a physical occupation of the property. 458 U.S. at 440. The cable company “installed
a cable slightly less than one-half inch in diameter” along the exterior of the building,
“directional taps, approximately 4-inches by 4-inches” on the roof, and “two large silver boxes”
also on the roof. Id. at 422. Contrasted to the physical intrusion posed by the hardware in
Loretto, Blue Pineapple “stands 50 feet tall and weighs 168 tons.” R. 3. This Court established
that “[t]o the extent that the government permanently occupies physical property, it effectively
18
destroys each right” in the bundle of property owner rights. 458 U.S. at 435. Any permanent
physical invasion on the rights of the property owner, authorized by the government, established
a taking, regardless of any important public benefit or economic impact on the property owner.
Id. Therefore, for an uncompensated taking to occur, this Court merely needs to determine
whether VARA permits a permanent physical occupation by prohibiting Mr. Lassiter from
removing Blue Pineapple from his property, which the Twelfth Circuit properly found.
Blue Pineapple operates as a physical occupation in that the sculpture is affixed to the
courtyard of the Marlowe for the duration of Mr. Spencer’s lifetime. Following the reasoning
established in Loretto, VARA effectively dispossesses Mr. Lassiter of his rights to occupy the
space monopolized by Blue Pineapple, as well as, to exclude Blue Pineapple from his property.
458 U.S. at 435-36. VARA effectively leaves Mr. Lassiter with no control over the property he
owns, and dispossesses Mr. Lassiter of the right to dispose of the property through sale, as
VARA’s grant of integrity to Mr. Spencer transfers to any subsequent purchaser. Id. This Court
has previously established that physical invasions on private property require compensation due
to the particular burden imposed, “however minimal the economic cost it entails, eviscerates the
owner’s right to exclude others from entering and using the property.” Dolan v. City of Tigard,
512 U.S. 374, 384 (1994). In other words, VARA’s requirement that Blue Pineapple remain on
Mr. Lassiter’s property causes a physical invasion on Mr. Lassiter’s property rights because Mr.
Lassiter can no longer use, exclude, dispose of, or effectively posses the portion of his property
occupied by Blue Pineapple. Furthermore, VARA causes “a special kind of injury” in allowing
an authorized third party to retain power over Mr. Lassiter’s property. Id. at 436. VARA
essentially allows Mr. Spencer’s single right of integrity to outweigh Mr. Lassiter’s entire bundle
19
of rights by authorizing Blue Pineapple’s physical dominion over that portion of Mr. Lassiter’s
property.
2.
Blue Pineapple permanently occupies Mr. Lassiter’s property
Mr. Spencer’s direct invasion of Mr. Lassiter’s property establishes a permanent
occupation “since [Mr. Lassiter has] no control over the timing, extent, or nature of the
invasion.” Loretto, 458 U.S at 436. This Court set the standard for permanence of a physical
taking to as “long as the property remains [privately owned] and [an authorized third party]
wishes to retain the installation.” Id. at 439. For a physical occupation to amount to a permanent
taking, the interference with the property owner’s rights must rise to the level of a regular and
continuous invasion. See U.S. v. Causby, 328 U.S. 256, 266 (1946) (finding regular and
continuous flights over privately owned land as “so low and so frequent as to be a direct and
immediate [physical] interference with the use and enjoyment of the land”). VARA’s
authorization of Blue Pineapple to remain on Mr. Lassiter’s property indefinitely establishes an
uncompensated permanent physical taking.
The Twelfth Circuit properly found that VARA establishes a permanent physical
occupation in violation of Mr. Lassiter’s Fifth Amendment right as Blue Pineapple’s occupation
occurs regularly and continuously. As evidenced by this Court’s previous decisions, permanence
refers to the indefinite duration of physical intrusion by anyone other than the landowner. See
Nollan v. California, 483 U.S. 825, 832 (1987) (“permanent physical occupation” occurs where
“individuals are given a permanent and continuous right to pass to and fro” such that occupation
of private property is subject to control by another party other than the property owner). In this
case, Mr. Lassiter’s inability to possess, control, dispose of, or exclude Blue Pineapple from his
property constitutes a permanent physical invasion as VARA requires Blue Pineapple to remain
20
untouched for the indefinite period of Mr. Spencer’s lifetime. In fact, the takings may occur
through intermittent, but constant physical interference with property ownership rights. See
Griggs v. Allegheny County Pa., 369 U.S. 84, 82 (1962) (taking found where constant take offs
and landings of aircraft significantly interfered with the property owner’s use of the land).
Therefore, Blue Pineapple’s physical intrusion constitutes a permanent invasion of Mr. Lassiter’s
privately owned property because the sculpture remains physically affixed to the property
regularly, consistently, and constantly for the indefinite remainder of Mr. Spencer’s life. As such,
the Twelfth Circuit properly concluded that VARA’s required preservation of Blue Pineapple
produces a permanent physical occupation of Mr. Lassiter’s property in violation of the Fifth
Amendment.
Even though Mr. Lassiter purchased the Marlowe aware of Blue Pineapple’s existence,
VARA still amounts to a per se physical taking. In Yee v. Escondido, this Court held that a
California rent control ordinance did not amount to a physical taking because no physical
occupation of the land existed, rather, the ordinance regulated the land owners’ use of their
property after voluntarily inviting tenants to rent mobile home pads. 503 U.S. 519, 531-32
(1992). This Court found that California’s regulation did not effectuate a physical taking because
the landowners voluntarily rented to tenants, but were not required by the state to do so. Id. at
527-28. The ordinance merely regulated rental rates, eviction parameters, and eviction time
periods. Id. at 527. In contrast, VARA forces Mr. Lassiter to accept the physical presence of Blue
Pineapple without recourse for the duration of Mr. Spencer’s life. Although Mr. Lassiter’s
predecessor-in-title invited the sculpture onto her property, VARA forces Mr. Lassiter to retain
Blue Pineapple indefinitely, without regulation.
21
B.
The Twelfth Circuit properly found that even if VARA did not create a per se
categorical taking, VARA creates a non-categorical regulatory taking in violation
of the Fifth Amendment and should be affirmed
The Twelfth Circuit properly opined that VARA also constitutes a regulatory taking in
violation of the Fifth Amendment. Penn Central, 438 U.S. at 138. The alternative claim to a
categorical taking is a regulation that “goes too far,” such that the regulation effectively amounts
to a taking. Pa. Coal Co., 260 U.S. at 415. Regulatory takings may be partial or total. See Penn
Central, 438 U.S. at 104 (a partial taking potentially occurred under the regulatory regime as the
property had remaining value as an operating train station, despite a restriction prohibiting use of
the air rights above the station). In other words, a partial regulatory taking occurs where a portion
of the property has been regulated but the property retains some value. Id. Whether partial
regulatory takings require compensation depends on balancing the factors established in the polestar case of Penn Central: “the economic impact of the regulation on the claimant and,
particularly, the extent to which the regulation has interfered with distinct investment-backed
expectations… [and] the character of the governmental action.” Penn Central, 438 U.S. at 124.
A regulatory taking cannot divide a single piece of property into individual segments to
determine whether rights in that segment have been entirely removed; rather, in deciding whether
a regulation affects a taking, courts focus on “the nature and extent of the interference with rights
[o]n the parcel as a whole.” Penn Central, 438 U.S. at 130-31. Even assuming, arguendo, that
VARA regulates Mr. Lassiter’s property rights to a degree not amounting to a permanent
physical occupation, under a Penn Central balancing, VARA effects a regulatory taking
requiring compensation under the Fifth Amendment of the U.S. Constitution.
22
1.
VARA’s devaluing economic impact on the Marlowe weighs in favor
of a regulatory taking
The economic impact on the Marlowe resulting from VARA weighs in favor of a taking
as VARA devalues the property’s present and future economic use. Penn Central, 438 U.S. at
124. The Penn Central economic impact factor asks whether the regulation diminishes the
property’s value or use. PruneYard Shopping Center, 447 U.S. at 83. Economic impact is not
determined by an “automatic numerical barrier preventing compensation, as a matter of law, in
cases involving a smaller percentage diminution in value.” Yancey v. United States, 915 F.2d
1534, 1541 (Fed. Cir. 1990). The evaluation of the economic impact depends on the comparison
of the value that the regulation takes from the property and the value that remains in the
regulated property. Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 479 (1987).
As VARA produces a diminution in the fair market value of Mr. Lassiter’s property, this factor
weighs in favor of a regulatory taking.
The Twelfth Circuit properly found that VARA affects a regulatory taking under the
Penn Central analysis and should, therefore, be affirmed. Mr. Lassiter purchased the Marlowe, a
50-story office building, in 1989. R. 2. At the time Mr. Lassiter purchased the property, Blue
Pineapple had already been installed. R. 2. VARA was enacted in 1990. R. 3. Mr. Spencer’s
right of integrity, which, through VARA, gives Mr. Spencer authority over the portion of Mr.
Lassiter’s property occupied by Blue Pineapple, was not attached to the property at the time Mr.
Lassiter purchased the Marlowe. R. 3. Therefore, at the time of Mr. Lassiter’s purchase, he was
able to use, possess, dispose or exclude use from any portion of the property—that is, Mr.
Lassiter’s bundle of property rights had yet to be diminished. Additionally, at the time Mr.
Lassiter purchased the property, his predecessor-in-interest previously modernized the Marlowe,
meaning that at the time Mr. Lassiter purchased the Marlowe, the fair market value of the
23
property included the ability to remodel and modernize all portions of the property. Although the
record fails to provide exact values, if Mr. Lassiter purchased the property without limits on his
ability to exercise all rights in a property owner’s bundle, on which VARA now places
restrictions, Mr. Lassiter has established a diminution in economic value without regulation
compared to the economic value of the property when subject to VARA.
The economic impact on Mr. Lassiter’s use of the Marlowe as a business complex subject
to VARA’s restraints on his ability to modernize the property, creates current and continuous
diminution in the Marlowe’s property value. Assuming Mr. Lassiter attempts to sell the
Marlowe, the fair market value of the property retains VARA’s encumbrance. VARA not only
inhibits Mr. Lassiter’s ability to use his property, but also inhibits his ability to recoup his
investment. See Yancey, 915 F.2d at 1539. As Mr. Lassiter purchased the Marlowe for the sole
purpose of use as a business complex, his ability to continue to use the property as a business
complex has been significantly reduced. Mr. Lassiter is stripped of his ability to exercise his
traditionally protected property rights to modernize the Marlowe, which would inhibit the
Marlowe’s operation as a business complex.
In an ever-evolving, fast-paced, technologically driven, wireless society, property owners
who lose the ability to modernize lose the ability to make profitable use of their property. As
established in Penn Central, the terminal retained the ability to transfer air rights to eight parcels
in the vicinity of the terminal, providing some use of the terminal’s air rights. 438 U.S at 138. In
contrast, Mr. Lassiter must compete with non-regulated and uninhibited business competitors.
Unlike the owners in Penn Central, Mr. Lassiter cannot transfer or otherwise use the rights in the
land Blue Pineapple dispossesses him of. Mr. Lassiter merely wishes to utilize the Marlowe in
the same manner for which he purchased it. In contrast to Penn Central, Mr. Lassiter has no
24
intention of exploiting a previously unrealized property interest. Id. Although Mr. Lassiter
retains some economic value in his property, VARA substantially reduces the Marlowe’s viable
use as a business complex. As such, the Twelfth Circuit properly held that the economic impact
prong weighs in favor of a regulatory taking.
2.
VARA’s substantial interference with Mr. Lassiter’s investmentbacked expectations weighs in favor of a regulatory taking
The Twelfth Circuit properly found VARA’s interference with Mr. Lassiter’s reasonable
expectations for his purchase and future use of the Marlowe weighs in favor of a regulatory
taking. Determining the extent to which the regulation interferes with the property owner’s
investment-backed expectations requires a fact-based, case-by-case examination. Palazzolo v.
Rhode Island, 533 U.S. 606, 634 (2001) (J. O’Connor concurring). The inquiry is not limited to
the property owner’s expectations at the time the property is purchased, rather, the inquiry
hinders on various investment decisions, including: investment decisions made after the initial
purchase of the property, historical uses of the property, whether the claimant operated in a
“highly regulated industry,” whether the claimant was aware of the concern behind the regulation
at the time of purchase, and whether the claimant could have reasonably foreseen the possibility
of the regulation at the time of purchase. See, e.g., Good v. U.S., 189 F.3d 1355, 1361-62 (Fed.
Cir. 1999); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (Tex. 1998); Appolo Fuels, Inc. v.
U.S., 381 F.3d 1338, 1349 (Fed. Cir. 2004). Investment-backed expectations must be reasonable,
meaning the investment-backed expectations must rise above a “unilateral expectation or an
abstract need.” Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1005-06 (1984). Furthermore, the
closer a property interest to the core property rights, the more reasonable the owner’s expectation
to exercise that right and the greater the likelihood a court will find a deprivation of that interest
25
to be a taking. Ruckelshaus, 467 U.S. at 1005-06. As such, VARA’s interference with Mr.
Lassiter’s reasonable investment-backed expectations weighs in favor of a regulatory taking.
Mr. Lassiter’s reasonably expects to continue to use the Marlowe as a business-complex,
which weighs in favor of a regulatory taking. At the time Mr. Lassiter purchased the Marlowe,
the property operated as a business complex. R. 3. Mr. Lassiter’s expectations in purchasing the
property were to continue using the property as a business complex, as evidenced by his
continued use of the Marlowe as a business complex. R. 3. Although Mr. Lassiter was aware that
Blue Pineapple occupied the courtyard at the time of purchase, VARA did not come into effect
until after Mr. Lassiter purchased the property. R. 2. Mr. Lassiter’s investment-backed
expectations could not reasonably factor in VARA’s possible enactment, and even if a
reasonable expectation existed, Mr. Lassiter would not have reasonably foreseen Mr. Spencer’s
retroactive right to control the use of Blue Pineapple nearly 30 years after its completion. R. 2.
Mr. Lassiter could not have reasonably foreseen the federal government swooping in, creating a
new stick in the traditionally protected bundle of property rights, and giving that stick to a third
party. The position in which Mr. Lassiter finds himself in exists in stark contrast to the protection
created by the Takings Clause of the Fifth Amendment. Furthermore, Mr. Lassiter purchased the
Marlowe after the previous owner modernized it from its original design, which would lead a
reasonable purchaser to rely on the right to do the same. R. 1-2.
As established by this Court in Tahoe-Sierra Preservation Council v. Tahoe Regional
Planning Agency, a temporary taking claim challenging a 32-month moratorium on land
development in Tahoe, California, was not a taking, largely due to the unreasonable expectations
held by the landowners. 535 U.S. 302, 342 (2002). In Tahoe, the “average holding time …
between lot purchase and home construction is twenty-five years.” Id. at 315. This Court held
26
that the land purchaser should have reasonably anticipated the 32-month moratorium on land
development. Id. Mr. Lassiter’s purchase included the reasonable expectation to modernize the
property, because the previous owner performed “a large-scale overhaul” of the property in the
mid-1980’s. R. 2. Therefore, Mr. Lassiter’s expectations to modernize the property were
reasonable expectations. Furthermore, as this Court illustrated in Penn Central, the terminal
owners purchased the property expecting to use it as a train terminal, not as a 55-story office
building and a train terminal. 438 U.S. at 121. At the time of purchase and at the time of the
alleged regulatory taking, the property still operated as a train terminal, meaning that the
purchasers had not been denied their investment-backed expectations in purchasing the property.
Id. at 135. As established by his use of the property as a business complex and attempting to
modernize the property, but retain its use as a business complex, Mr. Lassiter uses and
reasonably expects to continue to use the property as a business complex. R. 2. Therefore,
VARA substantially interferes with Mr. Lassiter’s reasonable and distinct investment-backed
expectations, and weighs in favor of a regulatory taking.
3.
VARA’s character as a government intrusion on Mr. Lassiter’s
property rights weighs in favor of a regulatory taking
The Twelfth Circuit properly found that VARA effects a physical intrusion on Mr.
Lassiter’s property rights, which weighs in favor of a regulatory taking. Regulatory taking
determinations require inquiry into the purpose and importance of the public interest reflected in
the regulatory intrusion, meaning that a court must balance a private property owner’s liberty
interest against aims to protect public interest through the regulation. Cienega Gardens v. U.S.,
331 F.3d 1319 (Fed. Cir. 2003). Particularly, the purpose and importance of the public interest
examines “the degree of harm created by the claimant’s prohibited activity, its social value and
location, and the ease with which any harm stemming from it could be prevented.” Maritrans
27
Inc. v. U.S., 342 F.3d 1344, 1356 (Fed. Cir. 2003) (quoting Creppel v. U.S., 41 F.3d 627, 631
(Fed. Cir. 1994)). Additionally, burdens associated with public interest must inevitably be borne
by individual landowners, unless that burden is “so substantial and unforeseeable, and can so
easily be identified and redistributed, that justice and fairness require the public to bear them as a
whole.” Kirby Forest Indus., Inc. v. U.S., 467 U.S. 1, 14 (1984). On balance, the burden to Mr.
Lassiter’s core rights as a property owner substantially outweighs the benefit conferred to the
public by VARA, thereby weighing in favor of a taking.
The character of the governmental action through VARA effects a physical intrusion by
requiring the presence of Blue Pineapple. A physical intrusion “eviscerates the owner’s right to
exclude others … perhaps the most fundamental of all property interests.” Lingle, 544 U.S. at
539. For example, VARA does not restrict Mr. Lassiter to certain uses of his land (i.e., requiring
use of the property as a wetland, limiting use of the land for protection of endangered species,
etc.), as most preservation regulations have historically done. Rather, VARA allows Mr.
Spencer’s single right of integrity to usurp Mr. Lassiter’s entire bundle of property rights,
thereby affixing Blue Pineapple to Mr. Lassiter’s property indefinitely. VARA aims to “create a
comprehensive scheme ... to protect and ensure the preservation of certain types of artwork to
advance the public interest and to protect artists’ moral rights.” Carter v. Helmsley-Spear, Inc.,
861 F. Supp. 303, 328 (S.D.N.Y. 1994) aff’d in part, vacated in part, rev’d in part, 71 F.3d 77
(2d Cir. 1995). However, this public benefit unfairly causes an individual to bear the bulk of the
burden, which should be distributed to the public as a whole. Mr. Lassiter experiences an unfair
distribution of the burden in that DePaulia may receive the benefit of enjoying Blue Pineapple,
but VARA shifts the weight of that benefit specifically onto Mr. Lassiter alone, without
compensating him for the interference.
28
Even though Blue Pineapple receives public adulation by DePaulia, that value
disproportionately usurps Mr. Lassiter’s property rights, placing sole responsibility at Mr.
Lassiter’s door step. R. 3. See E. Enters. v. Apfel, 524 U.S. 498, 537 (1998) (finding that property
owner bore the substantial burden of funding federally-mandated retirement benefits to coal
miners, weighing in favor of a taking under “character”). Not only does VARA single out
landowners who have commissioned certain types of art, but VARA singles out specific
individuals within that typecast to bear the burden of the public benefit. Specifically, VARA
singles out landowners who purchase land without the opportunity to contract with artists of preexisting visual art to avoid the loss of landowner’s property rights. Essentially, VARA creates an
aesthetic benefit to the public, which effectively strips all traditionally protected property rights
from an individual landowner. As such, the character of this governmental regulation singles out
individual landowners to pay for the benefit of the public, which weighs in favor of a regulatory
taking.
Furthermore, VARA enacts a temporary regulatory taking, lasting the indefinite length of
Mr. Spencer’s lifetime. R. 1. This weighs against any benefit to the public in that VARA aims to
protect certain types of visual art, but only for the limited period of the artist’s life span. VARA’s
temporary preservation of certain works of visual art for public benefit fails to justify the
infringement on Mr. Lassiter’s constitutionally protected bundle of property rights. Therefore,
the Twelfth Circuit properly held that even when operating on the assumption that VARA did
not create a categorical taking under Loretto, VARA amounts, on balance, to a regulatory taking
under Penn Central.
29
CONCLUSION
VARA violates Mr. Lassiter’s rights under the First Amendment by requiring him to
maintain Blue Pineapple on his property. The presence of Blue Pineapple amounts to speech,
which triggers a strict scrutiny analysis because VARA compels this form of speech and,
additionally, alters the traditional contours of copyright protections. As applied VARA fails strict
scrutiny because it fails to serve a compelling government interest and because VARA’s
restrictions on Mr. Lassiter’s speech are not narrowly tailored. Intermediate scrutiny does not
apply since VARA is not content-neutral. Nor does VARA pass intermediate scrutiny because
VARA lacks a substantial government interest and unnecessarily interferes with the freedom of
expression.
VARA’s requirement that Mr. Lassiter keep Blue Pineapple on his property constitutes
an uncompensated taking in violation of the Fifth Amendment. Forcing Mr. Lassiter to retain
Blue Pineapple creates a permanent physical occupation of his property, which amounts to a per
se categorical physical taking under the Fifth Amendment. Even assuming VARA fell below the
level of a categorical physical taking, VARA equates to a non-categorical regulatory taking,
under a Penn Central balancing, in violation of the Fifth Amendment. For these reasons Carlton
Lassiter respectfully requests that this Court affirm the decision of the Twelve Circuit Court of
Appeals.
30