Friday, February 1, 2013
I just realized that it was two years ago today that I first appeared on this blog. I was merely a guest at that time (and strategically agreed to blog during the shortest month of the year). It's nice to have taken up permanent residence here and I want to thank my co-bloggers for the support, but with a special thanks to Matt Festa and all he does to keep things going.
Thanks for reading
Marc Roark is guest blogging this month at The Faculty Lounge, and I think some of our readers might be intrigued by his work.I found his first post fascinating. He is working on a project about space-claiming in public spaces. In general, the project seems to engage us with envisioning the city, and I am looking forward to hearing more.
I am on the lookout for interesting scholarship that might make appropriate extra-credit reading for my Land Use Planning students. Just in time for the aesthetic regulation and First Amendment sections of the course, I found that Jim Smith (Georgia) has recently posted The Law of Yards, 33 Ecology. Q 203 (2006). Here's the abstract:
Property law regimes have a significant impact on the ability of individuals to engage in freedom of expression. Some property rules advance freedom of expression, and other rules retard freedom of expression. This Article examines the inhibiting effects on expression of public land use regulations. The focus is on two types of aesthetic regulations: (1) landscape regulations, including weed ordinances, that regulate yards; and (2) architectural regulations that regulate the exterior appearance of houses. Such regulations sometimes go too far in curtailing a homeowner's freedom of expression. Property owners' expressive conduct should be recognized as “symbolic speech” under the First Amendment. The Supreme Court developed the symbolic speech doctrine in contexts other than land use, but the rationale for the doctrine supports its extension to aesthetically based land use regulations. The clearest case of protected speech is a homeowner's conduct that conveys a political message, such as a yard display that protests a decision made by a local government. Other conduct, however, that is nonpolitical in nature can convey a particularized message, and thus can merit First Amendment protection. Examples are a homeowner's decision to plant natural landscaping, motivated by ecological concerns, or to install a nativity scene at Christmas. A regulation that restricts an owner's protected speech is unconstitutional unless the government proves both that the regulation is narrowly tailored and that it protects a substantial public interest. If the public interest is solely based on the protection of aesthetic values, ordinarily it is not substantial enough to justify the restriction on speech. The government must come up with a plausible justification other than aesthetics to prevail. When the justification consists of an interest in addition to aesthetics, the balancing rules developed by the Supreme Court for symbolic speech should apply. If the regulation restricts expressive conduct, it may survive scrutiny only if it protects the community from conduct that causes significant economic or other non-aesthetic harm, while minimizing infringement on expression.
Thursday, January 31, 2013
This issue came to mind recently because a student of mine wrote a really interesting post on my clinic’s blog (yeah, I make my students blog, don't you?) about his experience in a one-car family where his wife often needs the car during the day, and so he is left to find alternative means home. Central Boise, where the law school is located, is compact by western city standards, and the city maintains a decent bus system for a city its size. But as is often the case with bus systems, it doesn’t really take you where you want to go without transfers and an inevitable wait. On nights when he needed a ride home and his wife had the car, my student started hitchhiking instead of taking the bus home. Now, Boise is one of those aggressively friendly western towns (think of Arthur Chapman’s “Out Where The West Begins”), so maybe you chalk up his willingness to hitchhike, and others’ willingness to give him a ride, as a matter of culture. But maybe we have all just come to believe that hitchhiking is more dangerous, and more deviant, than it really is. Or should be.
Most of us probably think of that lot by the side of the road, at best, like Jack Kerouac presented them in his poem “Hitchhiker”:
"Tryna get to sunny Californy" -
Boom. It's the awful raincoat
making me look like a selfdefeated self-murdering imaginary gangster, an idiot in a rueful coat, how can they understand my damp packs - my mud packs -
„Look John, a hitchhiker"
„He looks like he's got a gun underneath that I. R. A. coat"
"Look Fred, that man by the road" „Some sexfiend got in print in 1938 in Sex Magazine" –
„You found his blue corpse in a greenshade edition, with axe blots"
Undoubtedly, we’ve been told there must be something wrong with that person by the side of the road and they probably intend to do us harm. But if there was not a stigma around hitchhiking, I mean ride-sharing, maybe we would get more people like my student: a bright guy whose family can normally do with just one car but on occasion finds himself stuck. Should we really be forcing such families to buy a second car just for that occasional moment when schedules collide?
Probably the best known hitchhiking program in the country is the “Casual Carpool” program in San Francisco’s East Bay, where well-heeled suburbanites line up to pile into cars and cross the Bay Bridge into San Francisco for a day’s work in the Financial District. In this program, the act of hitchhiking has completely lost its sense of danger, a lot of people are getting to work quickly, and a lot of infrastructure never had to be built to accommodate all the cars those people would otherwise be driving to work.
Out in Wyoming, which might be about as far ideologically as you can get from Berkeley, there appears to be agreement at least on this: hitchhiking might be good not just in urban areas, but rural ones, too. In fact, a newly introduced bill in Wyoming’s Senate this term would make hitchhiking legal in that state.
So who knows. Maybe all of that noodling of transportation engineers about how to solve the problem of how to get lots of people from here to there in far-off distant ‘burbs, and even rural areas, ultimately boils down to changing our sentiments about the hitchhiker. In urban areas, perhaps it means institutionalizing the act to some degree, such as with the Casual Carpool.
For those who want to learn more, a Freakanomics podcast from 2011 does a great job of discussing the relative danger of hitchhiking, and also its potential for dealing with rides in suburban sprawl, and is available here. And a hat tip to my student, Nicholas Morgan, who also recommends these sites: Adventuresauce, the hitchwiki, vagabondish’s 10 tips, and this overview of state laws on the issue.
Stephen R. Miller
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