Posted by: Patricia Salkin | September 21, 2020

Fed. Dist. Court in NY Holds “Porcelain Gardens” Were Protected by the First Amendment

This post was authored by Matthew Loescher, Esq.

Plaintiff Frederick “Hank” Robar installed toilets repurposed as planters containing floral arrangements and attached to decorative posts, installations he referred to as “porcelain gardens,” on seven properties he owned in Potsdam. The Potsdam Board of Trustees concluded that Plaintiff’s porcelain gardens were “junk” within the meaning of the relevant statute and ordered their removal. Following this, Plaintiff sought to enjoin Defendants from removing his porcelain gardens from his properties pursuant to the Board Resolution. In addition to seeking injunctive relief, Plaintiff also requested a declaration that his porcelain gardens were not “junk,” as defined in Village Code § 125-4.

Defendants first argued that the Board did not necessarily mandate the destruction of Plaintiff’s porcelain gardens, but only their removal from public view, and that Plaintiff therefore did not face irreparable harm. Even assuming this, the court found that requiring Plaintiff to relocate or somehow conceal the porcelain gardens pending the outcome of a trial on the merits would amount to a “loss of First Amendment freedoms” for that time. Thus, Plaintiff had established irreparable harm.

It was undisputed that at least part of Plaintiff’s intention in displaying the porcelain gardens is to communicate a political message. Specifically, one of the purposes of this display was to “recount the tale of Plaintiff’s legal dispute with the Potsdam government over his purported right to convert the property to a commercial use, to memorialize Plaintiff’s defeat, and to protest his purported persecution on philosophical grounds”. Plaintiff also claimed that he intended to convey non-political, artistic messages, to communicate “that beauty can be found in the simplest and strangest items” and to express the “fun, bright, and unique character of his hometown and community.” The court inferred that Plaintiff’s porcelain gardens, which have been in their present arrangement and location for nearly fifteen years, remained there because Plaintiff actually intended to express a message.

The record further reflected that nearly fifteen years separated Plaintiff’s initial creation of the art in question and the present enforcement action. These temporal distances undermined the inference that animus against Plaintiff was a prominent motivation behind either the passage of the law or its enforcement against Plaintiff. Moreover, the junk removal law’s restrictions applied to a variety of junk apart from toilets. As such, the court found that Plaintiff failed to show that Chapter 125 was a content-based restriction as applied to him, and intermediate scrutiny applied. The city demonstrated significant interests in mitigating attractive nuisances, promoting aesthetics, and maintaining property values. Nevertheless, the Board Resolution, in mandating the removal of every last one of Plaintiff’s installations entirely from public view, swept too broadly to be justified by these governmental interests and was found unconstitutional. Since Plaintiff had shown a likelihood of success on his First Amendment Claim, Plaintiff’s motion for a preliminary injunction was granted.

Plaintiff also sought a declaration that the porcelain gardens were not “junk” as defined in Chapter 125. In support of this, Plaintiff argued that the porcelain gardens were not “junk,” because they were not “worn out or discarded material,” but had been intentionally placed. The law explicitly stated that the porcelain gardens were included within this category, setting forth that “junk” “included, but was not limited to, junk appliances,” defining “junk appliances” to include “bathroom fixtures,” and defining “bathroom fixtures” to include “toilets.” Accordingly, Plaintiff’s request for declaratory relief was denied.

Robar v Village of Potsdam Board of Trustees, 2020 WL 5633824 (NDNY 9/21/2020)

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