Unkempt Weeds Aren’t|Art, Seventh Circuit Says

CHICAGO (CN) - After a lengthy discussion of weeds vis-à-vis native plants, U.S. Circuit Judge Richard Posner said a business's untended weed lot does not qualify for First Amendment protection.

Chicago's weed ordinance provides that "any person who owns or controls property within the city must cut or otherwise control all weeds on such property so that the average height of such weeds does not exceed ten inches. Any person who violates this subsection shall be subject to a fine of not less than $600 nor more than $1,200."

The ordinance does not define "weed," an omission Judge Posner found important, especially given the city's dispute with gardeners over native plant gardens.

Chicago also requires owners of any open lot in the city to surround it with a fence.

Discount Inn, which has been fined more than 20 times for violating both ordinances, sought to invalidate the laws as a violation of the First Amendment.

A federal judge dismissed the suit for failure to state a claim, and the Seventh Circuit affirmed Monday - but not without a lengthy discussion of weeds.

"There is an ambiguity in the concept of a 'weed,' an ambiguity brought out by comparing 'weed' to 'native plant,'" Posner said, writing for the three-judge panel. "A native plant, like a weed (or perhaps it could be thought of as an elite type of weed), is 'born' and matures normally without human intervention although it may also have been deliberately planted. It need not be destructive."

However, some weeds may be invasive species that crowd out desirable plants, or harbor animal pests. With regard to this type of plant, Chicago clearly has a valid ecological interest in weed control, the court found.

"The concern is that native plants, while sharing with weeds the property of not having to be planted, are, unlike weeds, beautiful and nondestructive when properly managed," Posner said.

The court included several pictures of native plants in its opinion to demonstrate that many such plants, often considered weeds, can be quite beautiful.

Rather than defining a weed as an unmanaged growth, "a better definition of 'weed' would be 'a wild plant growing where it isn't wanted,'" Posner said. "That would dispense with the irrelevant issue of origin. The dandelion is 'native' to the Midwest by any measure; so is crabgrass; but dandelions and crabgrass on a lawn are weeds."

However, the opinion notes that Discount Inn does not argue that its properties contain native plants. Rather, it simply argues that the 10-inch limit on weeds violates the free-speech clause of the First Amendment.

"Though plants do not speak," a garden may be considered eligible for First Amendment protection if it can be considered a work of art.

"The gardens of Sissinghurst Castle and of Giverny might well be recognized as works of art were they in the United States," and many Chicago gardens may also qualify, the 16-page opinion states.

"But the plaintiff's claim that the free-speech clause insulates all weeds from public control is ridiculous," Posner said. "It's not as if the plaintiff invented, planted, nurtured, dyed, clipped, or has otherwise beautified its weeds, or that it exhibits or intends or aspires to exhibit them in museums or flower shows. Its weeds have no expressive dimension. The plaintiff just doesn't want to be bothered with having to have them clipped."

Discount Inn has not added anything to the weeds growing on its property, not even a name, and has no basis to claim the weed gardens are a work of art, the panel ruled.

"Taken to its logical extreme, the plaintiff's defense of the weed would preclude any efforts by local governments to prevent unsightly or dangerous uses of private property. Homeowners would be free to strew garbage on their front lawn, graze sheep there, and broadcast Beethoven's 'Fifth Symphony' 24 hours a day through outdoor loudspeakers - all in the name of the First Amendment," Posner concluded.

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