Abstract

http://ssrn.com/abstract=2130677
 


 



The Law of Yards


James Charles Smith


University of Georgia Law School

2006

Ecology Law Quarterly, Vol. 33, pp. 203-232, 2006

Abstract:     
Property law regimes have a significant impact on the ability of individuals to engage in freedom of expression. Some property rules advance freedom of expression, and other rules retard freedom of expression. This Article examines the inhibiting effects on expression of public land use regulations. The focus is on two types of aesthetic regulations: (1) landscape regulations, including weed ordinances, that regulate yards; and (2) architectural regulations that regulate the exterior appearance of houses. Such regulations sometimes go too far in curtailing a homeowner's freedom of expression. Property owners' expressive conduct should be recognized as “symbolic speech” under the First Amendment. The Supreme Court developed the symbolic speech doctrine in contexts other than land use, but the rationale for the doctrine supports its extension to aesthetically based land use regulations. The clearest case of protected speech is a homeowner's conduct that conveys a political message, such as a yard display that protests a decision made by a local government. Other conduct, however, that is nonpolitical in nature can convey a particularized message, and thus can merit First Amendment protection. Examples are a homeowner's decision to plant natural landscaping, motivated by ecological concerns, or to install a nativity scene at Christmas. A regulation that restricts an owner's protected speech is unconstitutional unless the government proves both that the regulation is narrowly tailored and that it protects a substantial public interest. If the public interest is solely based on the protection of aesthetic values, ordinarily it is not substantial enough to justify the restriction on speech. The government must come up with a plausible justification other than aesthetics to prevail. When the justification consists of an interest in addition to aesthetics, the balancing rules developed by the Supreme Court for symbolic speech should apply. If the regulation restricts expressive conduct, it may survive scrutiny only if it protects the community from conduct that causes significant economic or other non-aesthetic harm, while minimizing infringement on expression.

Number of Pages in PDF File: 30

Keywords: freedom of expression, landscape regulations, architectural regulations, First Amendment, land use regulations, property law, real estate, public interest

JEL Classification: K11

Accepted Paper Series


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Date posted: August 16, 2012  

Suggested Citation

Smith, James Charles, The Law of Yards (2006). Ecology Law Quarterly, Vol. 33, pp. 203-232, 2006. Available at SSRN: http://ssrn.com/abstract=2130677

Contact Information

James Charles Smith (Contact Author)
University of Georgia Law School ( email )
Athens, GA 30602
United States

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