The Sag Harbor ZBA Vs. The U.S. Constitution
To The Editor:
The controversy surrounding the Larry Rivers sculpture “The Legs” continues its bizarre trajectory. On November 4, Judge Hudson, a New York State judge, affirmed the Sag Harbor Zoning Board of Appeal’s right to require its removal from its present location on Madison Street.
His opinion included the observation that:
“It is not in the ZBA’s jurisdiction…to judge what is art. That is a question
philosophers from Plato to Arthur Danto have debated and it is best left to
However, the learned judge got it wrong. Not a little wrong, 180 degrees wrong.
He may have been correct in stating that the ZBA is not the proper venue to decide what is “art”, a sentiment that the Sag Harbor village attorney echoed, but they both were wrong if, as appears to be the case, they think that such characterization is necessary to confer First Amendment protection.
The First Amendment does not protect “art” as such. It protects freedom of expression. Since all paintings and sculptures embody an expression of their creator, all receive First Amendment protection.
This issue was considered in 1996 by the United States Supreme Court, in the Hurley case. In the unanimous decision the Supreme Court stated that:
“… a narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a “particularized message,” … would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schönberg, or Jabberwocky verse of Lewis Carroll.”
If Pollock’s fully abstract drip paintings “unquestionably” embody a constitutionally-protected message of their creator so does the representational sculpture of Rivers.
The Federal Court of Appeals for the Second Circuit, the circuit that includes New York, in the Bery case, also in 1996, dealt with a closely analogous situation. That case involved the power of New York City to restrict the right of persons to display and sell their sculptures on public sidewalks where they wished to do so.
In invalidating the city’s rule, which had been adopted to avoid congestion, the Second Circuit set forth the constitutional rule with crystal clarity:
“… paintings, photographs, prints and sculptures…always communicate some idea or concept to those who view it, and as such are entitled to full First Amendment protection. Courts must determine what constitutes expression within the ambit of the First Amendment and what does not.”
The decision also pointed out that other objects could, in some cases, qualify for such protection.
“…the crafts of the jeweler, the potter and the silversmith… may at times have expressive content…”
These decisions leave no doubt whatever that, in the absence of “a significant governmental interest”, such as, in the words of the Second Circuit, avoiding “physical hazards” or “public chaos,” the display of The Legs in its present location is entitled to First Amendment protection. Such protection cannot be removed by the ZBA characterizing it as a “structure”.
The ZBA specifically found that the placement of The Legs would have no substantial impact on the physical or environmental conditions of the neighborhood, instead stating that allowing The Legs to remain in its present location would result in an undesirable change in the character of the neighborhood and a detriment to nearby properties for customary residential purposes.
That is nothing more than an aesthetic judgment, one with which many hundreds of viewers have publically disagreed. In any event, it does not qualify as a “significant governmental interest” and it cannot constitutionally be employed to prevent the owners of The Legs from displaying it in its present location.
Laws adopted by Sag Harbor cannot trump the United States Constitution. The action of the ZBA demonstrably is not “content neutral”. It is censorship and the Constitution does not permit censorship of protected expression.
If the owners of The Legs appeal Judge Hudson’s decision to the Federal courts, the result will be easy to foresee. The Legs then will continue to be displayed in its present location as long as its owners wish.
Philip T. Kaplan
It continues to amaze me how much some people place so much of their time, energy, and life’s value into false worth. We all came and moved to this very special idyllic village for a better quality of life for ourselves and family. It’s our job and the people we elect to govern and protect the fabric of our community and maintain its village character and integrity. I am pro-development and anti-suburbanization, especially for our town. Let us keep in mind that no one (except an act of God) can change or ruin our way of life unless we allow it.
When I moved here almost 30 years ago my home an original Bulova home had changed hands three times in the previous 10 years and appreciated almost 400 percent. Let us all continue to move forward and work together and keep our village the Sag Harbor we all know and love.