We previously discussed the sometimes thin line between free speech and a nuisance. The latest such controversy has arisen in Westford, Vermont where Ted Pelkey decided to make a statement after city officials refused his permit to build an 8,000 square foot garage on his property. His response was a single finger salute to the Westford Selectboard and Development Review Board. This is not the first such salute piece to prompt legal questions over its display. Notably, the Vermont Supreme Court recently ruled that ugly is not a nuisance.
Pelkey constructed the monument out of a 700 pound block pine and spent $4,000 to place it atop a 16-foot pole. While vulgar, this is a type of aesthetic nuisance, which courts generally do not enjoin. As noted in 81 N.Y. Jur. 2d Nuisances § 17 “Things merely disagreeable, however, which simply displease the eye or offend the taste, or shock an oversensitive or fastidious nature, no matter how irritating or unpleasant, are not nuisances.” In one of the earliest such cases out of Oklahoma, the court observed in Bixby v. Cravens that landowners are “not compelled to consult the ‘aesthetic tastes’ of their neighbors as to the kind of fence they should build or whether the smooth or rough side thereof faced in or out, or as to the color of the paint they should use thereon.”
Pelkey can also argue that this is political speech in its rawest form. I seriously hate it but the question remains one of free speech and what standard would apply if towns could start to distinguish between forms of speech.
What do you think?