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©Copyright 2005 NCAC
WEB DESIGN
Jeanne Criscola Criscola Design
free speech first amendment censorship
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On
the exterior wall of a restaurant in the historic
district of Charleston, Burke painted a mural
that was publicly visible from the street. His
mural is described as carrying an artistic message
emphasizing the importance of societal diversity
and tolerance. Because of Burke’s hope that
the mural would be displayed for an indefinite
period of time on the heavily traveled street,
thus drawing a wider audience, he accepted a lower
than usual fee. Neither Burke nor the restaurant
owner applied to Charleston’s Board of Architectural
Review (BAR) until BAR noticed the mural and issued
a stop work order. BAR denied the permit application,
noting the size, scale, impropriety for the historic
district, and garish colors.
Burke filed a lawsuit challenging the historic
preservation ordinances of Charleston under which
BAR operated. The Court found that the ordinances
were place and manner regulations under the First
Amendment.
To determine their constitutionality, the Court
looked at whether:
| • |
The
regulation was content-neutral;
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The
regulation was narrowly tailored to serve
a significant government interest; and |
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The
regulation leaves open ample alternative channels
for communication. |
Applying
these factors, the Court determined:
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The
ordinances were content-neutral because there
was no evidence BAR officials intended to
stifle the message of the mural, finding instead
that the officials only looked at the mode
of delivery and its compliance with regulatory
criteria; |
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Charleston
could not promote its interest in maintaining
an aesthetically harmonious historic area
through other, less broad means that the ordinances
at issue; and |
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Burke’s
work could be exhibited at other locations
in the historic district, particularly in
interior locations. |
Thus,
the ordinances were found constitutional, and
Burke’s mural was subject to BAR’s
orders.
Burke appealed this ruling to the Fourth Circuit
Court of Appeals. Burke v. City of Charleston,
139 F.3d 401 (4th Cir 1998). On appeal
the Court found that Burke lacked standing, or
a right to make a legal claim, to assert a First
Amendment complaint. In order to have sufficient
standing
to sue, a plaintiff must have suffered injury
as a result of the defendant’s conduct.
The Court reasoned that Burke relinquished his
First Amendment rights when he sold his mural
to the restaurant owner and thus had no legal
interest in the display of his work. As such,
Burke did not suffer an injury as a result of
the city’s action and therefore cannot satisfy
the requirements for standing. |
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| These
materials are not intended, and should not be used, as
legal advice. They necessarily contain generalizations
that are not applicable in all jurisdictions or circumstances.
Moreover, court decisions may be superceded by subsequent
rulings, and may be subject to alternative interpretations.
Corrections, clarification, and additions are welcome.
Please send to ncac@ncac.org. |
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