Protest slogan on home pits zoning laws against free speech
A North Carolina man and the ACLU are suing Cary, N.C., after the town told him to remove a protest slogan he had painted on the side of his home. He says it's a free-speech issue, but the town argues he's breaking local zoning laws.
Courtesy of Shawn Rocco/ Newsobserver.com
There's political speech, commercial speech, and of course good old free speech. In Cary, N.C., there's also "house speech."
Amid the idyll of a carefully planned Sun Belt town stands a monument to one man's discontent: a white split-level ranch, its facade spray painted in garish fluorescent orange with the words "Screwed by the town of Cary."
A thumb-poke in the eye of a tony town, the fluorescent-orange lament of resident David Bowden has been a point of both embarrassment and amusement since he paid someone $200 to paint it in August.
Cary officials responded by threatening to fine Mr. Bowden unless he paints over the letters – and puts his protest on a five-square-foot sign, per the zoning laws. But wait. Enter the American Civil Liberties Union (ACLU), which recently filed a lawsuit that questions the town's ability to supplant political speech with communal taste, thus turning Bowden's bid to fight city hall with a can of spray paint into a First Amendment cause célèbre.
"It is possible that a court will say that the city ordinance does not discriminate on the basis of viewpoint or content," says Gene Policinski, executive director of the First Amendment Center at Vanderbilt University, in Nashville, Tenn. "But I think there's a better argument that this is political speech, and then there's a very high standard for when courts will allow [a town] to stop speech."
Formerly a railroad stop known as Bradford's Ordinary, Cary today is anything but. At nearly 130,000 people, Cary was among the fastest-growing areas in the US between 2005 and 2007, the Census Bureau reports, and is a perennial Top 10 winner on national "best places to live" lists. Natives have for years joked that the name is actually an acronym for "Containment Area for Relocated Yankees."
For many transplants, Cary is a suburban reserve, a sanctuary of northern NIMBY sensibilities set in a region where some natives flock on weekends to Big Ed's bric-a-brac breakfast joint in next-door Raleigh – a place replete with an actual Big Ed.
"I heard Cary described recently as the New Jersey of the South," says Bill Ferris, associate director of the Center for the Study of the American South at the University of North Carolina in Chapel Hill. "It's a unique kind of capsule of people who have come from outside the region and totally transformed the community."
Bowden, however, isn't from New Jersey. He's from North Carolina. His beef with the town stems from a road-widening project that he says results in flooding to his home during heavy rainstorms. Feeling his complaints were being ignored, Bowden used his house as his billboard and laid down an ultimatum: The words won't come down until Cary buys his home for $170,000, below its assessed value of $177,000.
"They weren't paying attention to me before," Bowden says in a phone interview. "Now they're paying attention."
The town says that it has a right to enforce zoning codes for issues that affect aesthetics and traffic safety and that Bowden has rebuffed offers to fix the drainage problem.
Bowden's story, moreover, isn't as righteous as it appears, officials say. Town Councilor Don Frantz says Bowden has ulterior motives, including a desire to use the town's checkbook to buy a large RV and "get a new life."
"This man ... just wants out, and in all honesty I can't say that I blame him," writes Mr. Frantz on his blog. "But it is not the town's responsibility to send him on a permanent vacation."
What's more, the wishes of residents are what have guided the development of Cary's aesthetic over the years, officials note. "My impression is that it's been a very well-planned town for decades, and it contributes to what I would call the character of Cary," says Brent Miller, an appointed zoning official, reached by phone.
The ACLU suit says the town is trying to squelch Bowden's legitimate political lament to save "embarrassment," because the house undermines the community's sense of self-worth and upper-class decorum. Forcing Bowden to put his message on a five-square-foot sign would, in effect, neutralize a potent form of political expression, it says. Proof of that effectiveness, says ACLU lawyer Mark Sigmon, is that the sign inspired action that was not forthcoming without it.
The lawsuit is still pending, but the town of Cary as agreed not fine Bowden while the case is ongoing.
In a 1994 case over antiwar signs on the lawn of a Missouri home, the US Supreme Court unanimously ruled that property-based protests are a "venerable form of speech," says Mr. Policinski at the First Amendment Center.
"The overwhelming impact and effect of [precedents] are to protect speech when it's a combination of core political speech ... on your own property," says the ACLU's Mr. Sigmon. "That's the heartland of the First Amendment."
The case comes as Cary is taking a hard look at its tough signage ordinance. In a down economy, realtors are complaining that the three street-side directional signs allowed for each listed home aren't enough to guide would-be buyers through the labyrinthine suburban streets.
It doesn't help the town's cause, says Mr. Miller, that sign-size requirements are waived for government purposes and some nonprofit agencies.