The Native Restored Remnant Tallgrass Prairie in Shell Lake, Wisconsin, received some bad press in the newspaper this week re: Washburn County Register. The article was in the Editor’s Column. One of our board members did some research and found an informative position paper. We are noting the Weed Law vs. Native habitat as follows.
V. SOME VILLAGES STILL DON’T GET IT – WHAT TO DO IF YOUR VILLAGE IS ENFORCING ITS WEED LAW AGAINST YOUR NATURAL LANDSCAPE
The types of old weed laws used by municipalities to prosecute natural landscapers generally suffer from a variety of legal flaws. These flaws can be exploited by natural landscapers who are targeted for prosecution in order to win his or her case, or hopefully, convince his or her village that the weed law should not be applied to natural landscapes. The flaws are constitutional, practical and evidentiary.
A. Natural Gardening as a Fundamental Right.
1. Landscaping as Speech and Art
Natural gardening can be constitutionally protected speech and, therefore, any weed law must be closely related to a compelling state interest. While not all natural landscapes are obvious to even a casual viewer, many are. Indeed, this is often the real “problem.” Symbolic speech is as protected as oral speech. One of the best ways a person can announce his or her concern for what humankind has done, and is doing, to the environment is to restore a portion of the environment to its natural state. Restoring natural vegetation can, therefore, be a form of speech and, as such, is entitled to the same protection that speech receives under the First Amendment.129
The attempt made by natural landscapers to politically express themselves through the cultivation of wild plants is one that parallels historical and traditional precedents.130 The political use of flowers as symbols is as important today as it has been in the past. The red rose is the symbol of the Socialist Party in France and the British Arbor Party. In the War of the Roses, opposing sides took roses of different colors as their symbols.131
Natural landscaping can also be artistic expression protected by the First Amendment.132 State law recognizes the beauty, artistic expression and virtue of landscape gardening.133 Landscape architecture is defined as “the art and science of arranging land together with the spaces and objects upon it, for the purpose of creating a safe, efficient, healthful, and aesthetically pleasing physical environment for human use and enjoyment.”134 A weed law, as applied to natural landscapers, denies the landscapers’ ability to express themselves, through an activity statutorily recognized as art.
Neighbors and government officials need not concur that the natural landscape is “art” before First Amendment protection attaches. In interpreting art as speech protected by the First Amendment, the court in Piarowski V. Illinois Community College 135 stated, “[t]he freedom of speech and of the press protected by the First Amendment has been interpreted to embrace purely artistic as well as political expression (and entertainment that falls short of anyone’s idea or art…)…”136
One of the most spectacular examples of natural landscaping as art lies in the heart of Chicago’s Grant Park. The Wild Flower Works II is the creation of Chicago artist Chapman Kelly.137 Kelly sees his garden of wildflowers, legumes and other native plants not merely as dirt and flowers, but rather a giant canvas on which he does his “most spectacular work.”138 The ecological painting is a socio-political work that symbolizes the proper role of humankind within Nature.
In 1988, when the Park District sought to have the Wild Flower Works plowed under, Kelly went to court and obtained a temporary restraining order arguing his First Amendment rights. The lawsuit was later settled by allowing the Wild Flower Works to remain in Grant Park and the Park District to receive regular reports on its maintenance.
“Gardening is the art that uses flowers and plants as paint and the soil and air as the canvas – working with nature provides the technique.”139 More remarkable examples of gardening as art are the efforts of the French Impressionist, Claude Monet. Following the death of his wife, Monet moved to Giverny, France in 1883. There he planted the gardens that were the subject of his most famous paintings. Focusing on color relationships and the effects of light, Monet carefully arranged pure colors in the abstract form of flowering plants to “create richly patterned textures and mood by contrasting or homonizing color relationships.”140 In the later, and most productive part of his career, Monet used his flower and water gardens at Giverny as a living studio. “With the living, growing and changing plants, always subject to light and weather, Monet created an organized concentrated color environment where he could live, breathe, observe and walk, forever having his painter’s eye challenged by the effects of light.”141 Many of the plants Monet employed, and much of the layout of the gardens, are the same or similar to many of today’s natural landscapes.
Enforcement of a weed law denies the artist the tools of her art, Nature. A city’s weed law enforcement is as devastating to a natural landscaper as declaring music a nuisance would be to a musician. Absent a showing of some compelling municipal interest, a city does not have the power to restrain a natural landscaper’s freedom of expression. The unjustified restraint of freedom of expression consitutes a violation of the First Amendment.
Sources: EPA, Landscaping with Native Plants; Green Landscaping Green Acres, The John Marshall Law Review
Volume 26, Summer 1993, Number 4. You can view the whole document at http://www.epa.gov/greenacres/weedlaws/JMLR.html