February 23, 2008

Breasts are not genitalia, and drivers don't gawk at the word "love" — a First Amendment problem.

Remember Ed (Gonzo) Stross, the artist who painted a Michelangelo-style Eve on an outdoor mural and got sentenced to 30 days in jail for depicting Eve's bare breasts? With the help of the ACLU, he won with a First Amendment argument.

I've read the opinion in Lexis, and I see the court — an intermediate appellate court in Michigan — agrees with me that the breasts Stross painted didn't violate the restrictions in the city's variance, because breasts are not "genitalia," but that he did transgress by painting the word "love." Nevertheless, the court held that the restriction on lettering was too broad in relation to the city's interest in not distracting drivers. So the breasts might distract you, but the city failed to proscribe them, and the word "love" — well, wouldn't it be funny if drivers collided as they rubbernecked to look at "love"?

12 comments:

rhhardin said...

What do you think the V in love is doing there?

Middle Class Guy said...

"...when he was ordered to jail, two years' probation and to pay a $500 fine for violating a city sign ordinance. He did not serve time."


Jail, two years pro, and a fine; for violating an ordinance? What would happen if he comitted a real crime in that town; spitting on the sidewalk, smoking in public places, or littering. Do they have capital punishment for ordinance violations?

Trooper York said...

Hey the Giant inflatable rat is outside of the Walgreen’s on Atlantic and Bond today. Good photo opp for the kids.

Bob said...

City will have to write a 30-page contract whenever they commission a work, I guess, and even then the artist will probably find a way to violate it.

Just Sayin said...

I'm a law professor, and sometimes I write about law.

But more often, I write about breasts and genitalia!!!

Trooper York said...

SuperLorna: [speaks into telephone] Martin Bormann's Super Service.
SuperAngel: Who the hell is this?
SuperLorna: SuperLorna.
SuperAngel: Get off the line, bitch!
SuperLorna: I'm gonna strap on your old man!
(Russ Meyer's Supervixens,1975)

titusohohoh said...

Breasts and genitalia is something that i do not feel is appropriate for this site.

i expect more from althouse.

Ann Althouse said...

This is for you then, Titus.

Fritz said...

Judicial activism. This case is similar to "Bong hits 4 Jesus." The ACLU defending wise asses.

Bender said...

The ACLU defending wise asses.

So, you would be OK, Fritz, if the police came and threw you in jail for using the profanity "asses" in public?

Fritz said...

Asses is not profanity, but if I were using actual profanity in public, I would understand how I could be arrested for disorderly conduct.

JohnLopresti said...

Now, suppose the muralist specialized in rhinoceros watering thundering along the savannah animal images meticulously rendered in vivid tropical painted hues on buildings' masonry exterior walls; and, stencilled beneath, the word 'love', selecting carefully the letters' shapes as if from some kaleidoscopic PeterMax beverage commercial art. Would drivers get lost in the visual jungle momentarily, illegally attracted from the serious business of driving the avenues, glimpsing the rhinos, and puzzling over the connotation of love as it might relate to rhinos, fairly grand size rhinos, at that.
If your honor will allow me one further conjecture to illustrate the innocuousness of public wallArt: suppose instead of water buffaloes and herds of Serengetti plains rare animals, instead the artist depicts deliberately provocative images of Phoenecian icons of the variety which even blase residents of modern day Liguria would find too expository...no, your honor, on second thought, I think I will end my plea here, and defer to community taste in mural art.