It all started in January 2021 when Dr. Newton Howard placed two 10-foot replicas of characters from the Transformers film franchise outside the front door of his swanky townhouse in Georgetown, a quaintly historic Washington, D.C. neighborhood famous for cobblestone streets, its eponymous university, and the stairs from the 1971 film, “The Exorcist.” What followed is a blockbuster battle pitting the self-styled forces of good and evil (though they disagree about who is who) involving local free speech and property rights supporters against neighbors who found the visage of the two metal statues a ghastly blight on the area’s antique charm. Soon, tourists started taking selfies, nearby residents complained to local authorities, online petitions were launched, social media did what it does, public hearings were held and, finally, in May 2023, the D.C. Public Space Committee decided the Transformers had to go.
To learn more about the laws governing public displays on private property, Harvard Law Today recently spoke to property law expert Molly Brady about public and private nuisance law, and other famous examples of houses that attracted neighbors’ ire. Brady, the Louis D. Brandeis Professor of Law at Harvard Law School, says that while “courts have generally resisted finding that buildings and statues and other things that people do on their property are aesthetic nuisances,” local zoning laws and diligent homeowners’ associations can prove to be mightier foes.
Harvard Law Today: What’s your hot take on the Transformers’ invasion of Georgetown?
Molly Brady: I say let them live. Not the Transformers, because that’d be scary. But individuals’ aesthetic judgments. I’m probably on the more liberal side of the spectrum, but I think property owners, in how they enjoy their property, have important expressive values at stake.
HLT: Might the Transformers constitute either a public or a private nuisance? I guess another way of asking that is, are anyone’s rights being violated here and, if so, whose?
Brady: For a long time, scholars have tried to make the concept of aesthetic nuisance more popular. This is the idea that someone’s displays on their property can be so egregious that neighboring property owners can object. An individual landowner could try to bring a private nuisance claim, arguing that their use and enjoyment of their land is reduced by this offensive, visual sight on neighboring property. Public nuisance is a trickier category to define, but it generally covers interferences with rights that are common among the community — something that rises to a level of affecting everyone in the neighborhood. A public nuisance claim would be grounded in similar concerns as a private nuisance: A claimant in either case would be arguing that individuals should be free to enjoy their space free of this visual distraction.
Despite scholarly endorsement of the idea of aesthetic nuisance, courts have generally resisted finding that buildings and statues and other things that people do on their property are aesthetic nuisances, even if these displays do impact neighboring property values. The reason for that seems to be that every property owner has a certain degree of freedom, even if circumscribed. And when it comes to visual things, although it might have impacts on neighbors’ property values or the view from their yards, it’s less of a direct physical risk than, say, something like pollution. So, courts have tended to say that aesthetic harm alone is not cognizable under nuisance law.
HLT: In this case, does it make a difference that two of the Transformers appear to be located on the public sidewalk in front of the owner’s townhouse, where some neighbors have planters and other items in front of their homes?
Brady: It could. The classic example of a public nuisance is an interference with a public highway. This is the oldest form of public nuisance that we know of. Imagine some medieval person fencing off a part of the street. So, to the extent that there’s a colorable claim to obstruction of the sidewalk, the neighbors might have a better claim. Although if other people are putting out planters and other sorts of things, this is not really about the obstruction to the sidewalk, and removing the Transformers could raise consistency of enforcement or other types of due process concerns.
There’s a great case I love from a few years ago out of Norfolk, Virginia, where couples were putting “love locks” on a bridge to memorialize their enduring love affairs. But the Virginia courts found that the intrusion of the love locks even just an inch onto a sidewalk might be enough to constitute a public nuisance, and later, the city had to cut them down. These types of public nuisances involving interferences with a public way are so canonical that there is even a great property law word for them: purprestures.
HLT: What if the Transformers are attracting a bunch of tourists and visitors and traffic?
Brady: That improves your odds of either a private or a public nuisance claim — again, there is a lot of overlap between them, depending on who’s affected and the scale of the effect. There’s an interesting history here. The oldest forms of public nuisance, as I said, are blockages of highways. But into the 19th century, you see things like circuses and museums and street performances come into play as public nuisances. There are two reasons for that. One is that these uses are considered morally objectionable. The second is the claim that these uses produce these physical effects — people gathering on the street to watch the puppet show or whatever. The Christmas lights in the movie National Lampoon’s Christmas Vacation are an example of this. If somebody in the neighborhood has a massive holiday display, and now people are driving by to see it and causing traffic, that can increase the odds of a nuisance claim.
I will observe that nuisance is very sensitive to location. Here, the Transformers are in Georgetown, which is not like your typical residential, suburban, neighborhood where the arrival of traffic, or even tons of tourists and other visitors, would be way outside the norm.
HLT: Would this take on different valence if it was considered First Amendment protected speech? For instance, would a case of someone installing a large political campaign sign promoting a particular candidate receive any more or less protection?
Brady: That’s an important question. And part of the puzzle here is figuring out, as my First Amendment colleagues will tell you, what counts as speech. Is a political sign really all that different from a Transformer? They’re both forms of expression to some degree, and certainly, political speech seems to get some special treatment within First Amendment case law. Very recent decisions, like 303 Creative LLC v. Elenis, foretell a lot of future litigation trying to discern what kinds of conduct count as “expressive.”
I do not mean to suggest that something like the choice to plant particular trees is a form of protected speech under the First Amendment. But it’s tricky, because I do think that there is this expressive value that may be part of the sort of underlying reason why, at least within nuisance law, courts have tended not to find owners’ aesthetic choices to be nuisances. Land use law, which I teach, involves how we draw the boundary between what’s a nuisance and where the First Amendment begins. There are cases about billboards, for instance, which restrict billboards to only certain areas. Is that a form of speech regulation or just a form of property regulation, which might be viewed as less problematic?
In the early days of billboards, because they weren’t yet sure whether the law could be furthering aesthetics as a valid purpose, there’s a great case from Missouri [St. Louis Gunning Advertisement Co. v. City of St. Louis] which said that it was permissible to regulate billboards because “miscreants” might hide behind them. The state was reaching for a justification for why it had an interest in this area. And of course, it was really about aesthetics and the “visual blight” that these new, big, flashy signs seemed to create. But the anxiety about both aesthetics and regulating speech helped produce this bizarre alternative justification. With respect to signage, there are a ton of Supreme Court cases based on the foundational belief that you have the right to express your beliefs, particularly your political beliefs, on your property. Although the case law has ebbed and flowed so much, saying that there’s any sort of bright line rule here is tough.
HLT: Are there other ways that what people do on their property can be regulated?
Brady: There are three ways to regulate what other people do on their land: nuisance law, which we’ve talked about; zoning and other forms of regulation, which could include Historic Preservation regulations; and covenants, or deed restrictions often in homeowners’ developments or residential subdivisions. As we’ve discussed, nuisance law is not very effective at regulating aesthetic choices. Courts tend not to want to interfere with aesthetic disputes, like a plaintiff who sues in tort because they don’t like the paint color of their neighbor’s house.
Although this was not always true, nowadays, courts are much more willing to say that aesthetics are a legitimate purpose that zoning regulation can serve — so the zoning code or some other form of regulation can get quite specific about what is and is not permitted. Still, there’s a split among the states on this question. Some say aesthetics alone is a perfectly good justification for a zoning regulation. But others say, aesthetics alone isn’t sufficient, but you can consider things like traffic, noise, etc. that are byproducts of the aesthetic issue.
With respect to residential subdivisions and homeowners’ associations (HOAs), that’s probably where others have the most power — arguably even more power than the government — to regulate aesthetics. HOAs can be the most intrusive and most specific about what they are requiring from you aesthetically and what they’re prohibiting. Because it’s governed by a mix of contract and property law — joining a homeowners’ association involves signing an agreement to be bound by “covenants” — private associations can often skirt some of the First Amendment and other questions that come up when you’re just thinking about government’s capacity to regulate. If you want a neighborhood where everything is painted blue and has the same kind of shingle roof, a homeowner’s association is for you, because you can opt into contractual restrictions that will ensure that your neighborhood looks the way you want rather than trying to use regulation or nuisance law to get there.
HLT: Homeowners associations also have gotten a bit of a reputation in recent years.
Brady: There are some particularly egregious examples of overreach by homeowners’ associations. There’s a great John Oliver clip about a homeowners’ associations in which one was trying to prohibit a man from sitting on a bench in his own front yard. And because it’s private rather than public law, we say, ‘Well, you should have read the contract before you signed on to this, even if it is a bit irrational.’ We enforce those private agreements a lot more readily than we do public law, where there’s at least a little bit of scrutiny of the motive.
HLT: Is there a slippery slope argument here? If you allow the Transformers to stay, what do you do if someone puts up a statue of Joseph Stalin? Where does it end?
Brady: It’s important to remember that social norms exist alongside law, and that there’s a lot of reasons why people aren’t running around putting up Joseph Stalin or whatever offensive person: because people generally worry about what neighbors think. What is on a property typically speaks to people about the values and perspectives held by that owner. And so, I think that’s a powerful limiter on what people do. That’s not really quite law, but it’s something like it. You do see examples of people putting up offensive or otherwise egregious things on their property, sure. But the owner endures the consequences of exercising those speech and property rights.
HLT: I think Professor Goldberg recently called this the norm of neighborliness.
Brady: Yeah, we love norms. Because so much of what we do happens in the shadow of the law. My neighbor and I, for instance, have a rock wall fence between us. And I don’t know if that’s exactly the boundary line or not, but we’re neighbors and we’re going to act neighborly. There’s a certain amount of tacit agreement that goes on. It’s an interesting question whether neighborliness works the same in urban versus rural or suburban settings.
HLT: Are there other examples where similarly famous disputes have occurred?
Molly Brady: The Flintstone House in California, an unusual domed building with lots of dinosaur sculptures, had similar issues where the neighbors said, ‘This is depressing my property values. People are coming to look at it.’ Interestingly, in that example, the most effective tool that neighbors had was public law: Some of the dinosaurs ended up being considered structures that were not permitted by zoning laws. The suit was eventually settled in a way that allowed the owner to keep her collection, but also required her to seek approval and permits for some of her more creative landscaping. There is also the Emoji House in L.A.. As long as people are living in close proximity, there will be disagreements about the neighbors’ choices. Whether it’s your flowers, or your signage, or whatever, there’s just a lot of difference of opinion.
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