Wednesday, September 30, 2015
Seventh Circuit Upholds Chicago's Weed and Fence Ordinances
In its opinion in Discount Inn v. City of Chicago, the Seventh Circuit has rejected constitutional challenges to the city's fence and weed ordinances, affirming the district judge's dismissal of the complaint. The plaintiff, a corporation that Judge Posner's opinion for the unanimous panel notes is inadequately identified in the record, sought "recovery of the fines that it has paid for violating" the ordinances —"it claims to have been fined more than twenty times."
Discount Inn alleged that the challenged ordinances violate the prohibition in the Eighth Amendment of “excessive fines.” Basically, Judge Posner rejects this claim with a simple statement: "A fine topped off at $600 can hardly be deemed an excessive penalty for violating the ordinance."
Discount Inn also alleged that the challenged "weed ordinance is vague and forbids expressive activity protected by the First Amendment." Posner does recognize that it is possible that plants could have an expressive dimension:
The gardens of Sissinghurst Castle and of Giverny might well be recognized as works of art were they in the United States. There may be gardens in Chicago, whether consisting of native or other plants, that are or should be recognized as works of art.
However, he ultimately dispatches the First Amendment claim thusly:
the plaintiff’s claim that the free‐speech clause insulates all weeds from public control is ridiculous. It’s not as if the plaintiff invented, planted, nurtured, dyed, clipped, or has otherwise beautified its weeds, or that it exhibits or in‐ tends 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.
Thus, this should be a rather routine affirmance of a dismissal.
However, Judge Posner has taken the opportunity to provide some discourse - - - and some illustrations - - - of "weeds." Posner writes:
there is an ambiguity in the concept of a “weed,” an ambiguity brought out by comparing “weed” to ”native plant.” 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. In contrast, an “invasive plant species” enters either naturally or by human transport into an area in which native or other valued plants are growing, and squeezes out or otherwise injures or destroys those plants. Cf. 40 C.F.R. § 166.3, defining “invasive species” for purposes of federal pesticide regulations as “any species that is not native to [a particular] eco‐system, and whose introduction does or is likely to cause economic or environmental harm or harm to human health.”
Here is one of the five photographs included in the 16 page opinion:
This image, like the other images in the opinion, and some of the discussion, is not in the record.
This opinion seems more confirmation of ConLawProf Josh Blackman's labeling of Judge Posner as the "most flagrant, and brazen offender" of the appellate rule against fact-finding.
Nevertheless, coupled with the Second Circuit's decision on "credit card surcharges," this case could be a great introduction in First Amendment: Neither prices nor weeds are speech.