in the court of the u s shawn...

PETITIONER – SHAWN SPENCER Team U

i

IN THE

SUPREME COURT OF THE UNITED STATES

________________

SHAWN SPENCER, Petitioner,

V.

CARLTON LASSITER,

Respondent. _______________

On Writ of Certiorari to the United States Court of Appeals

for the Twelfth Circuit

________________

BRIEF FOR PETITIONER, SHAWN SPENCER

________________

Team U Counsel of Record


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Questions Presented

1. Whether VARA’s grant of a right of integrity to an author of a work of visual art so that the author can prevent a landowner from removing, and in the process destroying, a work of visual art located on the landowner’s property violates the landowner’s freedom of speech rights under the First Amendment.

2. Whether VARA’s grant of a right of integrity to an author of a work of visual art so that the author can prevent a landowner from removing, and in the process destroying, a work of visual art located on the landowner’s property results in an uncompensated taking in violation of the Fifth Amendment.


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Table of Contents

Questions Presented ... ................................................................................................................... i

Table of Authorities .................................................................................................................... iii

Opinions Below ........................................................................................................................... vii

Jurisdiction ................................................................................................................................. vii

Statement of the Case .................................................................................................................. 1

Procedural Posture ...................................................................................................................... 2

Summary of the Argument .......................................................................................................... 2

Discussion ...................................................................................................................................... 4

I. VARA does not violate Respondent Lassiter’s First Amendment free speech rights.

......................................................................................................................................................... 4

A. Continued display of the Blue Pineapple does not constitute compelled speech in violation of the First Amendment…………………………………...............4

B. The case at hand is not analogous to “right of access” statutes because it does not involve expressive speech or conduct.……………………………………..6

C. VARA passes intermediate scrutiny…………………………………….....…10

II. VARA’s grant of a right of integrity to Spencer does not violate the Takings Clause of the Fifth Amendment

....................................................................................................................................................... 14

A. Lassiter cannot claim that VARA effects a per se physical taking because VARA does not compel Lassiter to submit to a permanent physical occupation of Lassiter’s property……………….………………………………….............14

B. Lassiter’s alternate claim that VARA effects a regulatory taking is also without merit because Lassiter has not been deprived of all economically beneficial interest in his property and VARA does not go too far in regulating Lassiter’s use of his property……………….…………………………………..................20

Conclusion .................................................................................................................................. 26


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Table of Authorities

UNITED STATES SUPREME COURT CASES

Andrus v. Allard, 444 U.S. 51 (1979) ..................................................................................... 20, 25

Armstrong v. United States, 364 U.S. 40 (1960) ......................................................................... 21

Block v. Hirsh, 256 U.S. 135 (1921) ............................................................................................. 18

Dallas v. Stanglin 490 U.S. 19 (1989) ............................................................................................ 8

E. Enters. v. Apfel, 524 U.S. 498 (1998) ...................................................................................... 20

F.C.C. v. Fla. Power Corp., 480 U.S. 245(1987) ................................................................... 15-18

First English Evangelical Lutheran Church of Glendale v. Los Angeles Cnty., Cal., 482 U.S. 304 (1987) ..................................................................................................................... 14 Glickman v. Wileman Bros. & Elliot Inc., 521 U.S. 456 (1997) ............................................... 9-10

Gorieb v. Fox, 274 U.S. 603 (1927) ............................................................................................ 24

Hadacheck v. Sebastian, 239 U.S. 394 (1915) ............................................................................ 22

Hurley v. Irish-Am. Gay, Lesbian and Bisexual Grp. of Boston, 515 U.S. 557 (1995) .................. 7

Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470 (1987) .............................. 18, 24

Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005) .................................................................... 14

Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) ................................ 14-19

Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992) ...................................................... 14, 21-22

Miami Herald Publ’n Co. v. Tornillo, 418 U.S. 241 (1974) ....................................................... 4, 7

Palazzo v. R.I., 533 U.S. 606 (2001) ....................................................................................... 21-22

Pac. Gas and Elec. Co. v. Public Utils. Comm’n of Cal., 475 U.S. 1 (1986) ................................ 7

Pa. Coal Co. v. Mahon, 260 U.S. 393 (1922) .............................................................................. 20

Penn Cent. Transp. Co. v. City of N.Y., 438 U.S. 104 (1978) ..................................... 16, 18, 20-26


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Shopping Ctr. v. Robins, 447 U.S. 74 (1980) ...................................................................... 4-6, 8-9

Rumsfeld v. Forum for Acad. and Inst. Rights, 547 U.S. 47 (2006) ..................................... 4, 7, 10

Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302 (2002) ......................................................................................................... 15, 20, 22 Turner Broad Sys,, Inc. v. F.C.C., 512 U.S. 622 (1994) ..................................................... 7, 10-13

United States. v. Albertini, 472 U.S. 675 (1985) ......................................................................... 12

United States v. Causby, 328 U.S. 256 (1946) ....................................................................... 15, 25

United States v. O’Brien, 391 U.S. 367 (1968) ....................................................................... 8, 10

United States v. United Foods, Inc., 533 U.S. 405 (2001) ............................................................. 9

Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) ............................................... 18, 22

Ward v. Rock Against Racism, 491 U.S. 781 (1989) ................................................................... 12

W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) .......................................................... 5

Wooley v. Maynard, 430 U.S. 705 (1977) ..................................................................................... 4

Yee v. City of Escondido, Cal., 503 U.S. 519 (1992) .............................................................. 16-18

UNITED STATES COURTS OF APPEALS CASES

Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004) ............................................................. 9 Bery v. New York, 97 F.3d 689 (2d Cir. 1996) ............................................................................... 8 Hendler v. United States, 952 F.2d 1364 (Fed. Cir. 1991) .......................................................... 21

Southview Assocs., Ltd. v. Bongartz, 980 F.2d 84 (2d Cir. 1992) ......................................... 15, 17

UNITED STATES DISTRICT COURT CASES

Bd. of Managers of Soho Int’l Arts Condo. v. City of New York (Soho III), No. 01 Civ. 1226(DAB), 2004 WL 1982520 (S.D.N.Y. Sept. 8, 2004) ...................................... 8, 11-13

Phillips v. Pembroke Real Estate, Inc., 288 F. Supp. 2d 89 (D. Mass. 2003) .................... 6, 11-12

LEGISLATIVE SOURCES


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H.R. Rep. No. 101-514 (1990), reprinted in 1990 U.S.C.C.A.N. 6915 .......................... 11, 13, 26 UNITED STATES STATUTES AND REGULATIONS

17 U.S.C.A. § 106A ............................................................................................................ vii, 2, 12

MISCELLANEOUS

Matt Williams, Comment, Balancing Free Speech Interests: The Traditional Contours of Copyright Protection and the Visual Artists’ Rights Act, 13 UCLA ENT. L. REV. 105 (2005) ................................................................................................................................ 13


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Opinions Below

The order and opinion of the United States Court of Appeals for the Twelfth Circuit, reversing

the decision of the district court, is not reported. Lassiter v. Spencer, No. 14 X 123, slip op. (12th

Cir. Nov. 20, 2014). The order and opinion of the United States District Court for the Eastern

District of DePaulia, finding Spencer’s contested sculpture protected under VARA §106A(a)(3)

and issuing an injunction enjoining Lassiter from removing, modifying or destroying said

sculpture.

Jurisdiction

The judgment of the United States Court of Appeals for the Twelfth Circuit was entered

on November 20, 2014. On November 21, 2014, this Court granted Petitioner’s writ of certiorari.

The jurisdiction of this Court is invoked under 28 U.S.C. § 1291.


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Statement of the Case

Respondent Carlton Lassiter (“Lassiter”) is a well-known real estate developer based in

Wispy Sunny Pines, DePaulia who purchased a commercial property (“the Marlowe”) in

downtown DePaulia City on June 6, 1989. Record at 2. The Marlowe is a fifty-story office

building with a large courtyard in the front; Karen Vick (“Vick”) originally owned the Marlowe

since the 1970s and commissioned well-known multimedia artist Petitioner Shawn Spencer

(“Spencer”) to create an artwork in the courtyard as part of a large-scale renovation in 1984. Id at

3. Spencer agreed to design, create, and install a large artistic sculpture (the “Blue Pineapple”) in

the courtyard and stated that Spencer would retain title and copyright to the work created; the

agreement did not state the duration of the artwork’s installation or provide provisions for

removal. Id at 3. The abstract, bronze sculpture that vaguely resembles a pineapple was unveiled

in the Marlowe courtyard on February 28, 1986. Over time, it acquired a blue patina and became

known by its now-popular name, the Blue Pineapple. Spencer’s work is extremely popular in the

United States, and the Blue Pineapple is no exception: the sculpture is celebrated in the local

community and the most widely visited work of public art in DePaulia. Id. at 4.

In 2013, Lassiter decided that the Marlowe needed modernizing. He hired an architect

from the firm Brannigan & Woody, who came up with a plan that involved overhauling the

Marlowe building and courtyard and removing the Blue Pineapple, The remodeling cannot be

accomplished without destroying the sculpture. When Lassiter announced in an interview that he

intended to go with the Brannigan &Woody plan, seventy five percent of DePaulians expressed

opposition. Id. On hearing that the Blue Pineapple was in jeopardy, Spencer brought action in the

U.S. District Court for the Eastern District of DePaulia and successfully sued for an injunction

preventing the removal of the sculpture on grounds that the removal violates the right of integrity


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granted to him under the Visual Artists Rights Act (“VARA”) §106A(a)(3). VARA was

implemented to prevent “any intentional distortion, mutilation, or other modification of [an

artwork] which would be prejudicial to [an artist’s] honor or reputation.” 17 U.S.C. §

106A(a)(3)A). It also granted the right to prevent destruction of a work of recognized stature. 17

U.S.C. § 106A(a)(3)(B); Record at 5, 7. The parties have stipulated that the Blue Pineapple is a

work of such recognized stature. Record at 8 n.9. Lassiter has responded by contending that

preventing the removal of the sculpture results in compelled speech, violating his First

Amendment freedom of speech rights, and in an uncompensated taking, violating the Takings

Clause of the Fifth Amendment. Id at 5.

Procedural Posture

On May 1, 2014, the United States District Court for the Eastern District of DePaulia

dismissed Lassiter’s claims and granted an injunction preventing Lassiter from removing,

modifying, or destroying the Blue Pineapple during Spencer’s lifetime. Record at 5. Lassiter

appealed the issuance of the injunction. Id.

On November 20, 2014, the US Court of Appeals for the Twelfth Circuit reversed the

District Court’s ruling and vacated the injunction. Id at 19. Judge Custer dissented. The Court of

Appeals found that VARA burdens more speech than necessary and thus violates Lassiter’s First

Amendment rights. Id at 13. The court also ruled that the injunction effectively gave Spencer the

right to occupy a portion of Lassiter’s privately-owned property, resulting in an uncompensated

taking under the Fifth Amendment. Id at 14.

Summary of the Argument

VARA is a constitutionally valid regulation which violates neither the First Amendment

nor Fifth Amendment rights of Respondent Lassiter. Preventing Lassiter from removing the


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Blue Pineapple from the courtyard of the Marlowe is not an abridgement of his free speech

rights. Display of the Blue Pineapple does not constitute compelled speech, because it neither

affects the speech of Lassiter nor requires him to affirm any message prescribed by the

government or another private party. In addition, this case is not analogous to “right of access”

cases. The Blue Pineapple itself and the courtyard and office building of the Marlowe do not

possess the expressive qualities necessary to qualify this case under the “right of access” line of

cases. Thus, intermediate scrutiny is properly applied, which VARA passes because its

restrictions are no more burdensome than necessary to further a substantial government interest.

Preventing Lassiter from removing the Blue Pineapple also does not effect an

uncompensated taking of Lassiter’s property in violation of the Fifth Amendment for two

reasons. First, VARA does not authorize a per se physical taking because VARA lacks the

element of compelled acquiescence required to apply the per se rule of physical takings. Second,

VARA does not effect a regulatory taking because Lassiter has not been completely deprived of

all economically beneficial uses of his property, nor are the facts in the record sufficient to

demonstrate that VARA has gone “too far” in regulating Lassiter’s use of his property to effect a

taking.


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Discussion I. VARA does not violate Respondent Lassiter’s First Amendment free speech rights.

A. Continued display of the Blue Pineapple does not constitute compelled speech in violation of the First Amendment.

VARA does not compel speech by Lassiter in violation of rights granted under the First

Amendment. Although VARA may raise free speech implications and thus be subject to First

Amendment scrutiny, the restrictions the Act places on Respondent Lassiter’s First Amendment

rights do not constitute to a violation of those rights. Rumsfeld v. Forum for Acad. and Inst.

Rights, 547 U.S. 47, 58 (2006). VARA does not abridge First Amendment rights because it does

not compel Lassiter to speak, support, or disseminate any message, nor does the Act exact a

penalty on the basis of a message Lassiter may wish to propagate. Pruneyard Shopping Ctr. v.

Robins, 447 U.S. 74, 88 (1980) (citing Miami Herald Publ’n Co. v. Tornillo, 418 U.S. 241, 256

(1974)). In Pruneyard, the Court addressed whether, by allowing public petitioning in a

privately owned shopping center, the California constitution violated the property owners’ First

Amendment rights. Pruneyard, 447 U.S. at 76-77. In finding that it did not, the Court

distinguished the situation in Pruneyard from those in prior analogous cases. First, unlike in

Wooley v. Maynard, 430 U.S. 705 (1977), the Court found that because the shopping center was

open to the public the views expressed by petitioners were unlikely to be confused with those of

the owners. Pruneyard, 447 U.S. at 87. See also Rumsfeld, 546 U.S. at 64-65 (citing Pruneyard

447 U.S. at 88). Second, no specific message was required by the government. Third, the owners

could easily disassociate themselves from views expressed by the petitioners by posting signs

explaining the views expressed were not their own. Id.


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These factors were central to the court in distinguishing Pruneyard from West Virginia

State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). Barnette affirmed an injunction of a state

law requiring school children to salute and pledge allegiance to the United States flag. Barnette,

319 U.S., at 642. The court viewed the compulsory salute as requiring an “affirmation of a belief

and an attitude of mind” which was the “the sphere of intellect and spirit which it is the purpose

of the First Amendment” to protect. Barnette, 319 U.S. at 632, 642. In contrast, public

petitioning in Pruneyard invoked no such affirmation. The differences between Pruneyard and

Barnette are illustrative of the kind of conduct and rights the Court views as protected by the

First Amendment. As opposed to private citizens on property open to the public, Barnette

involved a government-mandated political idea in a school that the child was required to attend.

Moreover, as the Court noted in Pruneyard, the shopping center owners could easily disassociate

themselves from the views expressed by the petitioners. Pruneyard, 447 U.S. at 88. In contrast, a

student has much less of an avenue to publicly display a disclaimer or disassociation, and his or

her actions in personally reciting a pledge are much more likely to be confused as reflecting the

individuals’ own actual views.

In the instant case, Respondent Lassiter is neither compelled to speak or associate himself

or his business with any ideological view, nor restrained from easily disassociating himself from

any message the Blue Pineapple may arguably express. The Blue Pineapple’s actual subject

matter is undefined and it has only been given the name the Blue Pineapple by DePaulia’s

inhabitants. As its nickname suggests, the sculpture possesses little significance beyond its

aesthetic qualities and popularity among the citizens of DePaulia. It is a sculpture of (possibly) a

blue pineapple, and, as the Twelfth Circuit’s discussion mentions, debate surrounding the work

seems to amount to whether the sculpture more accurately resembles an actor or a cartoon


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character. Record at 3. Thus, according to the standards laid out by the Supreme Court, the Blue

Pineapple does not raise a danger of abridging First Amendment rights because it conveys no

ideological message which may be confused or conflict with views held by Respondent. If

Respondent is concerned about the sculpture attaining some sort of ideological or other

significance, he is free to disassociate himself from any implied meaning in the Blue Pineapple

by posting a disclaimer near the sculpture. Such a dissociation does not amount to compelled

speech, but rather is consistent with the Court’s decision in Pruneyard suggesting this approach

to reduce the likelihood of confusion between petitioners’ and property owners’ views.

In addition, like the shopping center in Pruneyard that was generally open to the public,

the sculpture is viewable to the public in the courtyard of the Marlowe. Record at 4. This fact

weakens any claim by Lassiter that he is compelled by the government to display the Blue

Pineapple. While it was the property’s prior owner who invited Spencer to construct the

sculpture on the property, Lassiter of his own choice bought this property and was not compelled

to do so. See Phillips v. Pembroke Real Estate, Inc., 288 F. Supp. 2d 89, 104-05 (D. Mass. 2003)

(“Defendant, a highly sophisticated real estate development firm, agreed to place Plaintiff's

sculpture in a public park and did not obtain a written waiver of [Massachusetts Art Preservation

Act] rights—as it easily could have done under the law. Therefore, this was not compelled, but

invited artistic expression.”)

B. The case at hand is not analogous to “right of access” statutes because it does not

involve expressive speech or conduct.

The Twelfth Circuit erred in holding for the Respondent and finding that VARA is

similar to “right of access” statutes which require parties to accommodate views of other parties.

Cases addressing such right of access statutes have found that, for example, the forced inclusion


7

of a gay, lesbian, and bisexual group in a parade organized by private citizens “compromised”

the “speaker’s right to autonomy over the message.” Hurley v. Irish-Am. Gay, Lesbian and

Bisexual Grp. of Boston, 515 U.S. 557, 576 (1995). Unlike in Hurley and other “right of access”

cases, VARA and the Blue Pineapple do not affect or compel a message of Respondent Lassiter,

nor does the sculpture or Lassiter’s property involve expressive or symbolic conduct.

The instant case is more aptly analogized to that of Rumsfeld in which the Court did not

find that the Solomon Amendment, which required higher education institutions receiving certain

federal funds to allow access to military recruiters on campus, violated the objecting law

schools’ First Amendment rights. Rumsfeld, 547 U.S. at 67-68. In discussing speech, the

Supreme Court distinguished a series of cases, Tornillo, Hurley, and Pac. Gas and Elec. Co. v.

Public Utils. Comm’n of Cal., 475 U.S. 1 (1986), in each of which “[t]he compelled-speech

violation . . . resulted from the fact that the complaining speaker's own message was affected by

the speech it was forced to accommodate.” Rumsfeld, 547 U.S., at 63; see also Turner Broad.

Sys., Inc., v. F.C.C., 512 U.S. 622 655 (1994) (“[N]or do we think it the case, that must-carry

will force cable operators to alter their own messages to respond to the broadcast programming

they are required to carry”). Each of these prior cases involved the “expressive quality of a

parade, a newsletter, or the editorial page of a newspaper.” Rumsfeld, 547 U.S. at 64. In

contrast, the law schools’ recruiting services had no expressive message of their own that was

being affected by that of the military recruiters. Id.

While speech was an important component of finding First Amendment violations in

prior “right of access” cases, the Court in Rumsfeld also considered that First Amendment

implications may arise in these cases through expressive conduct. Rumsfeld, 547 U.S. at 65

(citing United States v. O’Brien, 391 U.S. 367, 376 (1968) (recognizing that some forms of


8

“symbolic speech” merited First Amendment protection). However, the Court found that the

conduct of the law schools in excluding military recruiters lacked an expressive quality to

warrant protection under O’Brien, because the conduct itself carried no specific ideological

message. Only through explanatory speech of the actions did the conduct acquire an expressive

quality. Id. at 66; see also Bd. of Managers of Soho Int’l Arts Condo. v. City of N.Y. (Soho III),

No. 01 Civ. 1226(DAB), 2004 WL 1982520 at *13 (S.D.N.Y. Sept. 8, 2004) (“As a threshold

matter, the doctrine of compelled speech encompasses only actual speech.”).

While some art may be expressive, it does not by default rise to the level of expressive

speech or conduct protected by the First Amendment. In its analysis of restrictions on the sale of

art in public spaces, the Second Circuit criticized equating the “visual expression involved in

these cases with the crafts of the jeweler, the potter and the silversmith who seek to sell their

work.” Bery v. New York, 97 F.3d 689, 696, (2d Cir. 1996). Rather, the Second Circuit stated

that “[c]ourts must determine what constitutes expression within the ambit of the First

Amendment and what does not.” Bery, 97 F.3d at 696 (citing Dallas v. Stanglin 490 U.S. 19, 24-

25 (1989) (social dance distinguished from expressive dance)). Thus, as the Second Circuit

found that the artwork in Bery did constitute expression, courts may also find that some artwork

does not possess the same expressive qualities.

The Twelfth Circuit’s decision that any duty to accommodate a “right of access” amounts

to compelled speech is misguided and misses certain nuances in the Supreme Court

jurisprudence discussed above. Justice Powell’s concurring opinion in Pruneyard, cited by the

Twelfth Circuit in support of this view, is not controlling and does not reflect the majority

position presented by Justice Rehnquist and joined by six other justices. Thus, Justice Powell’s

view that dissociation forces the property owner “to speak when he would prefer to remain


9

silent” and thus is compelled speech does not reflect the holding of Pruneyard. Pruneyard, 447

U.S. at 99 (Powell, J., concurring in part and in the judgment). Of note, Justice Powell joined the

majority decision because he did not think there was a showing of an actual likelihood of

confusion in Pruneyard, thus not requiring the proprietor to speak in order to disassociate

himself. Id. at 101.

Likewise, while the 10th Circuit stated that “harm occurs regardless of whether the

speech is ideological,” this statement and its citation to United Foods is misleading. Axson-

Flynn v. Johnson, 356 F.3d 1277, 1284 n.4 (10th Cir. 2004) (citing United States v. United

Foods, Inc., 533 U.S. 405, 411 (2001)). First, the cases outlined above clearly demonstrate that

it does in fact matter whether the speech or even conduct in question is expressive or may lead to

confusion between messages. Second, the Court’s decision in United Foods, upholding required

funding of advertisements to promote mushroom sales, turned on the lack of a larger regulatory

scheme to which the regulation of speech was incidental, not on a finding that speech was

protected regardless of whether it contained an ideological message. United Foods, 533 U.S. at

411-412. In contrast, the Court has upheld a general advertising scheme partly on the grounds

that it did not require the promotion of any specific ideological message. Glickman v. Wileman

Bros. & Elliot Inc., 521 U.S. 456, 472 (1997).

The case at hand is not similar to cases where a “right of access” has been found to be

compelled speech, because the Blue Pineapple does not qualify as expressive or symbolic art,

nor does the office building where the sculpture is located have any sort of message of its own

which might be confused or impeded by display of the Blue Pineapple. As discussed in the

section above, the Blue Pineapple is a simple sculpture that has acquired no meaningful

significance beyond its aesthetic qualities. Likewise, the property owned by Lassiter is merely


10

an office building. The land has even less expressive or symbolic significance than the law

schools’ actions of denying access to military recruiters in Rumsfeld. Therefore, Lassiter’s

argument that his First Amendment rights are abridged by VARA should fail, because Lassiter’s

property lacks the necessary expressive qualities to raise First Amendment concerns in the first

place. Respondent has presented no message of his own which he claims is being burdened or

contradicted by the preservation of the Blue Pineapple on his property. Rather than conflating a

message of his own, it seems to some degree that Lassiter’s objection to VARA lies essentially

in being denied the ability to remodel his property. However, this sort of economically-based

argument was expressly rejected by the Court in Glickman. As the Supreme Court explained,

“[t]he First Amendment has never been construed to require heightened scrutiny of any financial

burden that has the incidental effect of constraining the size of a firm's advertising budget.”

Glickman, 521 U.S. at 470.

C. VARA passes intermediate scrutiny.

Because VARA is a content-neutral regulation that does not compel speech, intermediate

scrutiny should be applied. Under O’Brien, a content-neutral regulation is valid if it “furthers an

important or substantial governmental interest; if the governmental interest is unrelated to the

suppression of free expression; and if the incidental restriction on alleged First Amendment

freedoms is no greater than is essential to the furtherance of that interest.” O’Brien, 391 U.S. at

377. As opposed to content-neutral, a regulation is content-based if it “distinguish[es] favored

speech from disfavored speech on the basis of the ideas or views expressed.” Turner, 512 U.S.

at 643-644 (finding that burdens such as interference with programming and reducing the

number of channels for which broadcaster can compete is unrelated to content). As Justice

Guster’s dissent in the Twelfth Circuit opinion noted, Lassiter has not identified a single


11

provision of VARA which “targets or directly regulates speech.” Record at 20. Regulations that

are neutral on their face can be shown to be non-neutral based on their operation or purpose.

Turner, 512 U.S. at 648-649. In this case, the purpose of VARA is clearly identified in the

legislative record as seeking to promote and protect works of art for the benefit of artists, as well

as society at large. H.R. Rep. No. 101-514 (1990), reprinted in 1990 U.S.C.C.A.N. 6915, 6915-

16. Moreover, the Twelfth Circuit identified no concern that the operation of VARA has been

applied in a manner to favor or censor content of a certain nature, nor has that issue been raised

in cases such as Soho III or Phillips addressing similar regulations.

VARA promotes a substantial government interest in protecting works of art from

destruction or distortion. In passing the Act, the House found that the preservation of important

artwork was important to benefit American culture, including maintaining an accurate account of

American culture at the time these works were created, incentivizing artists to excel rather than

seek purely profit, and protecting works “fundamental to our national character.” H.R. Rep. 101-

514 at 6916-17; see also Phillips, 288 F. Supp. 2d, at 104 (“The legislative history to VARA

indicates that the droit morale are also necessary to encourage artists in their arduous and often

financially-unremunerative work by recognizing its special contribution to society.”); Soho III at

*14 (listing Supreme Court decisions which have “held that aesthetics are a substantial

governmental interest well within the police power of the state to regulate.”).

VARA’s burdens on First Amendment rights are valid because they are no more

burdensome than necessary to further the government’s interest in protecting and promoting art.

A restriction is no more burdensome than necessary “so long as the . . . regulation promotes a

substantial government interest that would be achieved less effectively absent the regulation.”

Turner, 512 U.S. at 662 (quoting United States v. Albertini, 472 U.S. 675, 689 (1985)). This has


12

expressly been found not to require that the methods adopted by the government be shown to be

the “less-speech-restrictive alternative.” Soho III at *15 (citing Ward v. Rock Against Racism,

491 U.S. 781, 800 (1989)). Thus, that the Twelfth Circuit was able to come up with other

alternatives that may achieve the same ends of VARA does not compel a ruling that VARA is

not narrowly tailored. Rather, because VARA was carefully drafted to protect a limited category

of works of art while not imposing unnecessary burdens, this narrowly tailored Act should pass

intermediate scrutiny. Similar statutory regimes have been found to appropriately balance

promoting the government interest with incidental restrictions on individuals’ First Amendment

rights. For example, the Massachusetts Art Preservation Act (MAPA) was found to be

“narrowly tailored in that parties can easily opt-out of its provisions through a contractual

waiver.” Phillips, 288 F. Supp. 2d, at 104. Similarly, VARA gives parties the ability to waive

rights created by the Act. 17 U.S.C.A. § 106A(e)(1). In discussing New York’s Landmark

Preservation Law, the Soho III court found that the denial of approval to remove a work of art as

no more burdensome than necessary because it “only incidentally affected the Board's speech

rights to the exact nature of the government interest: preservation of an architectural and artistic

Work” and “the regulations imposed here do not eliminate other avenues through which the

Board can speak.” Soho III at *16. Similarly, Respondent is only being restricted from

removing or destroying the Blue Pineapple from the property. There are still many uses to

which the land may still be put to use, including for the original purpose for which the property

was bought for serving as an office building.

The Twelfth Circuit raised the possibility that by creating restrictions to removing art,

VARA might actually lead to less art being installed on private property out of concern that it

may not be removable later. Record at 12. However, any speculative dampening of incentive to


13

install art created by VARA is counteracted by the benefits of encouraging artists to do this work

without fear of it being destroyed. See H.R. Rep. 101-514, at *6916. This rationale for VARA is

analogous to that of providing copyright protections to create economic incentives for

innovation. See Matt Williams, Comment, Balancing Free Speech Interests: The Traditional

Contours of Copyright Protection and the Visual Artists’ Rights Act, 13 UCLA ENT. L. REV. 105,

114 (2005).

Finally, the Court should defer to the “predictive judgments” of Congress in designing

VARA rather than substitute its own judgments for what it believes to be the less-restrictive-

means of achieving the goals of the Act. Turner, 512 U.S., at 665-66; Soho III at *15. This

standard of deference means that the Court should infer that “Congress has drawn reasonable

inferences based on substantial evidence.” Turner, 512 U.S., at 666. Congress has done so in

drafting VARA. The legislative record shows that Congress enacted this legislation on the basis

of noted problems in the American art community: “Visual artists, such as painters and sculptors,

have complained that their works are being mutilated and destroyed, that authorship of their

works is being misattributed, and that the American copyright system does not enable them to

share in any profits upon resale of their works.” H.R. Rep. 101-514, at *6918. In addition, the

House Judiciary Committee noted that while similar state laws had been successful and not ill-

received in their respective states, practitioners in the field suggest that this patchwork of laws is

less effective than a uniform national regulation would be. H.R. Rep. 101-514, at *6919-20.

Thus, by creating a national regulation that responds to specific problems identified in the

congressional record, VARA crafted a system of rights that would give artists the means to

protect their artwork without unduly burdening other parties.


14

II. VARA’s grant of a right of integrity to Spencer does not violate the Takings Clause of the Fifth Amendment

The Twelfth Circuit erred in holding that VARA’s grant of a right of integrity to Spencer

effects an uncompensated taking of Respondent Lassiter’s property in violation of the Fifth

Amendment. The Takings Clause of the Fifth Amendment provides that private property shall

not “be taken for public use, without just compensation.” U.S. Const. amend. V. This Court has

distinguished between per se physical takings, as when the government effects a direct

condemnation or appropriation of property, and regulatory takings, as when a government

regulation prohibiting private uses is “so onerous that its effect is tantamount to a direct

appropriation or ouster.” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537 (2005).

VARA effects neither a per se physical taking nor a regulatory taking. First, VARA does

not effect a per se physical taking because VARA lacks the required element of compelled

acquiescence because it does not require Lassiter to submit to a permanent physical occupation

of his property. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). Second,

VARA does not effect a regulatory taking because Lassiter has not been completely deprived of

all economically beneficial uses of his property, Lucas v. S.C. Coastal Council, 505 U.S. 1003

(1992), nor are the facts in the record sufficient to demonstrate that VARA has gone “too far” in

regulating Lassiter’s use of his property to effect a taking. First English Evangelical Lutheran

Church of Glendale v. Los Angeles Cnty., Cal., 482 U.S. 304 (1987).

A. Lassiter cannot claim that VARA effects a per se physical taking because VARA does not compel Lassiter to submit to a permanent physical occupation of Lassiter’s property.

The facts on record in this case do not fit squarely into this Court’s narrow rule of per se

physical takings. The rule of per se physical takings states that “when the government physically


15

takes possession of an interest in property for some public purpose, it has a categorical duty to

compensate the former owner . . . regardless of whether the interest that is taken constitutes an

entire parcel or merely a part thereof. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning

Agency, 535 U.S. 302, 322 (2002) (internal citations removed). Analysis of per se physical

takings “stands in contrast to the fact-intensive inquiry accompanying a judicial determination

of whether a ‘regulatory taking’ has occurred.” Southview Assocs., Ltd. v. Bongartz, 980 F.2d 84,

93 (2d Cir. 1992).

This Court has considered a government action to be a per se physical taking for Fifth

Amendment purposes under two specific circumstances: (1) the government physically takes

possession or appropriates some interest in private property for its own public purpose, United

States v. Causby, 328 U.S. 256, 267 (1946) (holding the government appropriated an interest in

private airspace such that there was a taking where its planes used the private airspace to

approach a government airport), or (2) the government indirectly forces a property owner to

submit to a permanent physical occupation of his or her property by a third-party via law or

regulation, Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (holding the

government appropriated a portion of a private rooftop such that there was a taking via a law that

required landlords to allow cable television companies to install cable lines).

As the government has not entered onto Lassiter’s property and appropriated it for its

own use, Lassiter relies on Loretto to argue that VARA authorizes a permanent physical

occupation of his property by a third-party, and is therefore a per se taking. However, The

Twelfth Circuit erred in holding that VARA authorizes a permanent physical occupation of

Lassiter’s property and constitutes a per se taking under Loretto because Lassiter cannot show

the required element of compelled acquiescence by the government. F.C.C v. Fla. Power Corp.,


16

480 U.S. 245, 252 (1987); Yee v. City of Escondido, Cal., 503 U.S. 519, 527 (1992). Loretto’s

holding was meant to be “very narrow,” Loretto, 458 U.S. at 441, and this Court should not use

this occasion to expand Loretto’s holding beyond the specific circumstances of that case. Fla.

Power, 480 U.S. at 251 (overturning the court of appeals because it “broadened [Loretto’s]

narrow holding beyond the scope to which it legitimately applies.”).

Loretto holds that, in addition to directly seizing private property, the government can

effect a per se physical taking indirectly via law or regulation if the “character of the government

action,” Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124 (1978), reaches “extreme

form of a permanent physical occupation,” Loretto, 458 U.S. at 426. Supreme Court cases

following Loretto make clear that takings claims under this “permanent physical occupation”

theory require the element of compelled acquiescence to be per se physical takings. Yee, 503

U.S. at 527 (“This element of required acquiescence is at the heart of the concept of physical

occupation.”) (citing Fla. Power, 480 U.S. at 252). Compelled acquiescence is when the

government requires a landowner to submit to the permanent physical occupation of his or her

land by either the government or a third party. Id. at 527. The facts in Loretto satisfied the

element of compelled acquiescence because the challenged New York law specifically required

landlords to permit cable companies to install cable lines on their buildings and the cable

companies physically installed the cable lines on the landlord’s property under the law’s

authority. Loretto, 458 U.S. at 438.

Two Supreme Court cases addressing per se physical takings claims under Loretto

confirm that compelled acquiescence is a threshold requirement for application of the per se rule.

In Florida Power, the Court addressed a challenge to the Pole Attachments Act, which

authorizes the FCC to regulate the rates utility companies can charge cable television operators


17

who lease utility company poles to carry their television cables. Fla. Power, 480 U.S. at 252.

Even though the FCC regulation resulted in a substantial reduction in rent, the Court held that no

physical taking had occurred because the utility company had invited the cable company to lease

the poles. In so holding, Court emphasized that “nothing in the Act . . . requires utility companies

to give cable companies space on utility poles or prohibits utility companies from refusing to

enter into attachment agreements.” Fla. Power Corp., 408 U.S. at 246. In other words, there was

no compelled acquiescence by the government.

In Yee, the Court considered a challenge to the California Mobile Home Residency Law

brought by mobile park owners and held that The Court held that an Escondido, California

municipal rent control ordinance applicable to mobile home park owners did “not authorize an

unwanted physical occupation.” Yee, 503 U.S. at 539. Because the mobile park owners

“voluntarily rented their land to mobile home owners,” the required element of compelled

acquiescence by the government was absent and the government did not effect a per se physical

taking under Loretto. Id. at 539.

This case is similar to Florida Power and Yee because the required element of compelled

government acquiescence is absent. Like the Pole Attachments Act in Florida Power, VARA

does not explicitly require a property owner to grant artists the right to occupy space on their

property, nor does it explicitly prohibit property owners from excluding artists’ work from their

property. Fla. Power, 408 U.S. at 246. Thus, unlike the New York state law in Loretto, VARA

does not authorize a permanent physical occupation of Lassiter’s property. Rather, VARA

merely regulates Lassiter’s use of his property as he purchased it. Government regulation of a

private use does not constitute a per se physical taking under Loretto. Block v. Hirsh, 256 U.S.

135 (1921) (holding that government regulation that prohibits landlords from evicting tenants


18

unwilling to pay a higher rent was not a physical taking); Village of Euclid v. Ambler Realty Co.,

272 U.S. 365 (1926) (holding that a government regulation that bans certain private uses of a

portion of an owner’s property was not a physical taking); Keystone Bituminous Coal Assn. v.

DeBenedictis, 480 U.S. 470 (1987) (holding that government regulation that prohibited coal

companies from using fifty percent of the coal beneath certain structures was not a categorical

taking); Penn Central, 438 U.S. 104 (1978) (holding that a government regulation that forbid

private use of certain airspace was not a physical taking).

The required element of compelled acquiescence is also absent from the record. Like the

utility companies in Florida Power and the mobile park owners in Yee, the Marlowe’s prior

owner, Vick, voluntarily opened the Marlowe property to physical occupation and, consequently,

would not be able to claim a per se right to compensation based on Loretto. Yee, 503 U.S. at 531

(1992) (“Because [mobile home owners] voluntarily open their property to occupation by others,

petitioners cannot assert a per se right to compensation based on their inability to exclude

particular individuals.”).

The fact that VARA took effect two years after Lassiter purchased the Marlowe does not

advance Lassiter’s argument that VARA authorizes a per se physical taking under Loretto. In

Yee, the Court considered the mobile park owners’ submission to the rent control ordinance, as

well as their submission to the resultant alleged physical invasion, to have been voluntary even

though the owners were engaged in the business before the ordinance was enacted. Yee, 503

U.S. at 539. Similarly, even though Lassiter owned the property prior to the effective date of

VARA, the fact that he bought the Marlowe knowing that the Blue Pineapple was in situ

demonstrates that the government did not compel him to submit to the Blue Pineapple’s

presence. Record at 2, 4. Rather, VARA merely regulates Lassiter’s use of his property as he


19

purchased it. Further, VARA was in effect for only the latter twenty-two of the twenty-four years

that Lassiter owned the Marlowe property. Lassiter, therefore, had a two-year window in which

he could have removed and destroyed the Blue Pineapple for two years following his purchase of

the Marlowe property.1

Finally, the record does not definitively stipulate when the Blue Pineapple became a

work of recognized stature such that VARA prevents its destruction. The record indicates that

the sculpture only acquired its signature blue patina—the impetus behind its nickname the “Blue

Pineapple”—over time, Record at 3, but does not indicate how much time after it was unveiled

in 1986. It is possible that the Blue Pineapple was a work of recognized stature before the VARA

went into effect in 1991. But, it is equally possible that the sculpture did not achieve recognized

stature until sometime after VARA’s effective date. In that case, Marlowe’s decision to allow the

sculpture to remain on his property until it is today the most widely visited work of public art in

DePaulia, rather than immediately trying to remove the sculpture, undermines his claim that the

government authorized a compelled or unwanted invasion of his property.

This is not the case for this Court to expand the scope of Loretto’s per se rule beyond its

narrow application to explicit government requirements that property owners submit to

compelled physical invasions of their property. Because the required element of compelled

acquiescence is absent from this case, Lassiter’s per se physical takings argument fails at its

base, and this Court need not address whether the Blue Pineapple’s alleged occupation is

permanent or temporary. Rather, the interference with property rights of which Lassiter

complains “arises from some public program adjusting the benefits and burdens of economic life

to promote the common good,” and should be analyzed as an alleged regulatory taking. Penn

1 The effective date of VARA is June 1, 1991, VARA Section 610(a), and Lassiter purchased the Marlowe property on June 6, 1989.


20

Central, 438 U.S., at 124. Under a regulatory takings analysis, the fact that VARA results in a

loss of Lassiter’s property rights over only a portion of his property is significant, and should be

balanced against the public purpose behind VARA.

B. Lassiter’s alternate claim that VARA effects a regulatory taking is also without merit because Lassiter has not been deprived of all economically beneficial interest in his property and VARA does not go too far in regulating Lassiter’s use of his property

Lassiter cannot meet his burden of proving that VARA effects a regulatory taking based

on the facts of this case. “A party challenging governmental action as an unconstitutional taking

bears a substantial burden.” E. Enters. v. Apfel, 524 U.S. 498, 523 (1998). Indeed, “government

regulation often curtails some potential for the use or economic exploitation of private property”

and “not every destruction or injury to property by governmental action has been held to be a

‘taking’ in the constitutional sense.” E. Enters., 524 U.S. at 523 (1998) (internal quotations and

citations removed). This is necessary to preserve the government’s power to regulate, as

“[g]overnment hardly could go on if to some extent values incident to property could not be

diminished without paying for every such change in the general law.” Pa. Coal Co. v. Mahon,

260 U.S. 393, 413 (1922). “The Takings Clause, therefore, preserves governmental power to

regulate, subject only to the dictates of justice and fairness.” Andrus v. Allard, 444 U.S. 51, 65

(1979) (internal quotations removed). Determining what is fair in the regulatory takings context

“necessarily entails complex factual assessments of the purposes and economic effects of

government actions,” Tahoe-Sierra, 535 U.S. at 323 (2002), to determine when judicial

intervention under the Takings Clause becomes appropriate. For this reason, this Court has

explicitly stated that it “resist[s] the temptation to adopt per se rules . . . preferring to examine a

number of factors rather than a simple mathematically precise formula.” Id. at 327.


21

This Court has identified three factors as particularly significant in determining whether

the government action constitutes a taking: (1) the economic impact of the regulation, (2) the

extent to which it interferes with investment-backed expectations, and (3) the character of the

governmental action. Penn Cent., 438 U.S. at 130–31. While none of these factors are dispositive

and there is no clear formula regarding their application, this analysis is “informed by the

purpose of the Takings Clause, which is to prevent the government from “forcing some people

alone to bear public burdens which, in all fairness and justice, should be borne by the public as a

whole.” Palazzo v. R.I., 533 U.S. 606, 617-18 (2001) (quoting Armstrong v. United States, 364

U.S. 40, 49, (1960)). What emerges is the “basic notion that the government, under the guise of

regulation, cannot take from a property owner the core economic value of the property, leaving

the owner with a mere shell of shambled expectations.” Hendler v. United States, 952 F.2d 1364,

1373 (Fed. Cir. 1991).

A property owner may show that the government has effected a “categorical taking” by

demonstrating that a regulation rendered his property valueless. However, the facts of this case

do not warrant categorical treatment. Categorical treatment has been found appropriate only “in

the extraordinary circumstance when no productive or economically beneficial use of land is

permitted.” Lucas, 505 U.S. at 1017. In Lucas, the South Carolina law had the direct effect of

barring the owner from erecting any permanent habitable structures on his two parcels and

rendered them both completely “valueless.” Id. at 1007. Here, in contrast, there is nothing in the

record to suggest that VARA has deprived Lassiter of all economically viable use of his

property. The Blue Pineapple occupies only a small portion of Lassiter’s property. Record at 2.

Lassiter is free to develop the rest of his property as he pleases or Lassiter can maintain the


22

Marlowe as a commercial building and continue to derive the same value as he has been for the

past twenty-four years.

The fact that the Blue Pineapple prevents Lassiter from changing the way he uses the

small portion of his property upon which it is affixed does not amount to a categorical taking.

This Court has made clear that it does not look merely at the portion of the property being

regulated, but rather considers the value of the property as a whole. Penn Central, 438 U.S. at

130–31; Tahoe-Sierra, 535 U.S. at 328 (rejecting the “conceptual severance approach to the

“denominator question”); Palazzo,533 U.S. at 631 (refusing to address criticism of the

denominator rule that “the extent of deprivation effected by a regulatory action is measured

against the value of the parcel as a whole”). Because Lassiter has not been deprived of all

beneficial use of the parcel as a whole, VARA falls short of effecting a categorical regulatory

taking of his property per Lucas. “Anything less than a complete elimination of value, or a total

loss,” is considered a non-categorical regulatory taking, which is analyzed under the Penn

Central framework for partial takings. Tahoe-Sierra, 535 U.S. at 330.

There is no evidence on record to indicate VARA has caused a diminution in the value of

Lassiter’s property so onerous that it constitutes a compensable taking under Penn Central

because there is still significant value in Lassiter’s property. Supreme Court decisions sustaining

land-use regulations “uniformly reject the proposition that diminution in property value, standing

alone, can establish a “taking.” Penn Central, 438 U.S. at 131. Even large substantial

diminutions have been held insufficient. See Euclid v. Ambler Realty Co., 272 U.S. 365 (1926)

(holding no taking where zoning law cause a seventy-five percent diminution in value);

Hadacheck v. Sebastian, 239 U.S. 394 (1915) (no taking where law cause an 87.5% diminution


23

in value). Here, there is no evidence on record to indicate that a dramatic loss in value has taken

place.

In Penn Central, the Court considered a challenge to a government agency’s refusal to

approve plans for construction of fifty-story office building over Grand Central Terminal. The

Court looked at the property as a whole, not just the air rights above the building, Penn Central,

438 U.S. at 130–31, and held that there was no compensable taking because there was still

significant economically viable use to the building as it was, and it was possible that the owners

could still purchase the air rights to a smaller area of the building and build a smaller structure in

that space.

Like in Penn Central, there is still significant economically viable use to the Marlowe

property. Lassiter’s only restriction is that he cannot destroy the Blue Pineapple. For example,

Lassiter can continue to make use of the property as he has been for the past twenty-four years.

As noted by the dissent, the presence of the Blue Pineapple itself “may increase the desirability

and therefore value of his property because the sculpture is viewed as an attractive element in the

civic and public life of the community.” Lassiter v. Spencer, No. 14 X 123, slip op. at 25 (12th

Cir. Nov. 20, 2014). Thus, comparing the fair market value of the property with the sculpture to

the fair market value of the property without the sculpture, based on the record, does not clearly

show any decrease in value.

VARA also does not place overly burdensome restrictions on Lassiter’s reasonable

investment-backed expectations with respect to development of the Marlowe property. The fact

that Lassiter utilized the property as he purchased it (with the Blue Pineapple in situ), and made

no attempt to develop it for twenty-four years, suggests that Lassiter did not factor into the price

at which he purchased the property in 1989 his ability to develop it without the sculpture in


24

place. However, even if Lassiter did believe that he could eventually develop the courtyard

without the Blue Pineapple, he cannot establish a compensable taking based on the case law.

In Penn Central, the owners of Grand Central Terminal, which was designated a historic

landmark after their purchase, could not establish a taking “simply by showing that they have

been denied the ability to exploit a property interest that they heretofore had believed was

available for development.” Penn Cent., 438 U.S. at 130. The owners had entered into the

beginning stages of the idea of an addition, but had not yet spent substantial money. Although

the high-rise building may have been the most lucrative revenue-generating use of Grand Central

Terminal, it was not the only revenue-generating use of the building. Their primary expectation

was to use the terminal as it has been used for sixty-five years, and the addition did not frustrate

their expectation of that use. That was sufficient for the Court to hold that the law permitted the

owners “not only to profit from the Terminal but also to obtain a ‘reasonable return’ on its

investment.” Id. at 136.

Here, Lassiter obtained only one proposal and recommendation for how to modernize the

property. Record at 4. While part of that recommendation suggested completely overhauling the

front courtyard, Record at 4, Lassiter was only seeking to modernize his property, and such a

dramatic overhaul is likely not necessary to Lassiter’s primary expectation to continue to use the

Marlowe property as a commercial property. Like in Penn Central, that ability to maintain the

primarily expected use permits Lassiter to obtain a reasonable return on his investment.

The fact that Lassiter is limited in his options of how to modernize the Marlowe because

he cannot utilize that specific recommendation does not onerously diminish his investment-

backed expectations. Gorieb v. Fox, 274 U.S. 603 (1927) (holding that setback ordinance

restricting the use of only limited portions of the parcel was not a regulatory taking); Keystone


25

Bituminous Coal Assn. v. DeBenedictis, 480 U.S., at 498 (holding a requirement that coal pillars

be left in place to prevent mine subsidence was not a regulatory taking). Indeed, this court has

repeatedly affirmed that “where an owner possesses a full ‘bundle’ of property rights, the

destruction of one ‘strand’ of the bundle is not a taking.” Andrus v. Allard, 444 U.S. 51, 65–66

(1979). Here, Lassiter retains the potential to develop the property in other ways to increase its

value over time. For example, he can renovate the existing Marlowe, devise a plan to make a

smaller addition to the building, or even construct an addition to the building around the Blue

Pineapple. All of these options could increase the value of the property to give more than a

reasonable return on Lassiter’s investment, while leaving the Blue Pineapple intact.

Finally, the character of the government action in this case is neither extreme nor

significantly interferes with a traditionally respected crucial strand in the bundle of property

rights. Loretto, 458 U.S. at 435. For example, “government actions that may be characterized as

acquisitions of resources to permit or facilitate uniquely public functions have often been held to

constitute ‘takings.’” Penn Cent., 438 U.S. at 128. In Causby, this Court held that flights directly

over the claimant’s land, that destroyed the present use of the land as a chicken farm, constituted

a “taking.” VARA’s requirement that Lassiter leave the Blue Pineapple in place for the

remainder of Spencer’s life to maintain the status quo is of a character far less extreme because

Lassiter loses no present value.

In Penn Central, the Terminal owners were required to maintain portions of the Beaux

Arts facade of Grand Central railway station in the interest of historic preservation. Penn Cent.,

438 U.S. at 117-18. This did not constitute a taking even though it meant that the owners could

not construct a skyscraper on top of the Terminal. Like in Penn Central, VARA does not destroy

a crucial strand in the bundle of property rights, even though Lassiter is limited in the way that


26

he can use the courtyard space because its application requires that the Blue Pineapple remain in

place.

Further, VARA is not arbitrary, discriminatory, or demonstrably irrelevant to the policy

the legislature has properly adopted. Penn Central held that the practice of “reverse spot zoning”

was discriminatory and therefore not legal because the government’s police power cannot

arbitrarily single out or target a particular parcel for different, less favorable treatment than the

neighboring ones. Penn Cent., 438 U.S. at 132. While the regulations did not impact many other

buildings in the neighborhood, the Penn Central court looked at the city as whole and noted that

many other buildings had similar regulations. Therefore, the regulations were not arbitrary or

discriminatory. Similarly, VARA also does not “spot zone” the Marlowe by specifically

targeting the property and forcing it to maintain the Blue Pineapple. Instead, the law

comprehensively preserves the rights of artists’ works generally and thus not discriminatorily.

The Marlowe was not arbitrarily singled out; rather, the Blue Pineapple fit under the scope of the

VARA’s broad protection.

Conclusion

Preventing destruction of the Blue Pineapple, the most widely visited work of public art

in DePaulia, is related to the government’s legitimate goal of protecting and preserving visual art

of recognized stature. It is of great cultural significance to the people of DePaulia, and its artistic

and social importance should be legally preserved. In introducing VARA, Representative

Markey recognized that “Artists in this country play a very important role in capturing the

essence of culture and recording it for future generations” and that “it is paramount to the

integrity of our culture that we preserve the integrity of our artworks as expressions of the

creativity of the artist.” H.R. REP. NO. 101-514, at 6916 (1989). VARA recognizes this and acts


27

within constitutional bounds of both the First and Fifth Amendments to ensure artists who have

created works of art that have achieved recognized stature are protected, thus ensuring society

can continue to benefit from the great works of art they generate.

in the court of the u s shawn...

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