Discount Inn, Inc. v. City of Chicago, No. 14-3678 (7th Cir. Sept. 28, 2015).
The City of Chicago fined Discount Inn for its weeds. A city ordinance makes it illegal to let your weeds grow to an average height of more than ten inches. Discount Inn now challenges this ordinance on a number of grounds, all of which the Seventh Circuit rejects. The most interesting of these challenges is that the anti-weed ordinance violates the First Amendment.
The First Amendment may well protect gardens as expressive works, Judge Posner acknowledges. And yes, even though Discount Inn hasn’t claimed that it has done anything to beautify its grounds, “we must be careful not to impose a minimal standard of ‘expressiveness.’” After all, that sort of standard might exclude novel works of art from the First Amendment’s protection—works like Duchamp’s famous Fountain:
Even so, allowing your weeds to grow tall can’t itself be expressive, says the Seventh Circuit. If it were, it would open the door to a host of challenges to local ordinances. Could you let sheep graze on your front lawn, allow them to wander the neighborhood, and then claim that it was all just a work of performance art called Sheep May Safely Graze?
Pace the Seventh Circuit, the Discount Inn’s First Amendment argument fails not because growing tall weeds on your property can’t itself be expressive. Probably it can be. The argument fails, in my view, because growing tall weeds is generally not expressive, which means that a ban on tall weeds does not target expression. One could draw an analogy to a sales tax: A state can apply a sales tax to art galleries because the tax applies to everybody else, too.