Saturday, May 9, 2015

David L. Hudson Jr.: No First Amendment right to not cut grass

  Not every free-expression lawsuit has a prayer of being accepted in court – a lesson from an Indiana appellate court involving a man who asserted freedom of conscience and free-speech defenses to not mowing his lawn.

  Alexander Gul of Bloomington believes that modern-day lawn maintenance practices harm the environment, and he refused to cut his yard, causing his grass to reach more than eight inches in height.

  City officials repeatedly cited him for violating its lawn ordinance. In response, Gul contended that the ordinance violated his freedom of conscience rights under the Indiana Constitution and his rights to freedom of expression under the First Amendment and state constitution.

  After a trial court rejected his claims, Gul appealed to the Indiana Court of Appeals, which also cut down his contentions in its Dec. 22nd opinion in Gul v. City of Bloomington (PDF).

  The Indiana Court of Appeals also fittingly quoted the anonymous proverb: “The grass may be greener on the other side of the fence, but you still have to mow it.”

  Article I, Section 3 of the Indiana Constitution provides: “No law shall, in any case whatsoever, control the free exercise and enjoyment of religious opinions, or interfere with the rights of conscience.” Gul contended the application of the city’s ordinance interfered with this rights of conscience. However, the court reasoned that the ordinance did not punish Gul for his beliefs, but for his conduct acting on those beliefs. The court also reasoned that to allow Gul to violate the ordinance “would be tantamount to declaring nearly every statute and ordinance on the books in Indiana unconstitutional, as it is possible to find someone, somewhere, with a sincere belief that contravenes every law.”

  The Indiana appeals court was similarly unimpressed with Gul’s First Amendment free-expression claim. First Amendment jurisprudence extends to protect many types of expression, but the law requires the intent to convey a particularized message and likelihood that people will understand that particularized message.

  The appeals court accepted that Gul attempted to convey a particularized message by not mowing his grass. But, the appeals court noted that Gul had stipulated that no one knew why he refused to mow his lawn.

  “There is nothing inherent to an overgrown yard that would lead an average person of ordinary sensibilities to conclude that any message at all was being conveyed,” the court wrote. “Until Gul explained the reasons for his actions, the community was mystified.”

  The appeals court also rejected his state free-expression claim, noting that his failure to maintain his lawn “was harmful to the public welfare.”

  About the author: David L. Hudson Jr. is the First Amendment Ombudsman for the Newseum Institute.

  This article was published by the Newseum Institute.

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