It was an especially bitter November afternoon on Park Lake Road in Bath Township as artist Robert Park looked for somewhere to place an addition to his Blue Loop art installation, a miniature sign reading: “Much ado About Blue.”
Park was joined by pro bono attorney William Metros and boisterous supporter Tom DelGiorno to discuss his options after losing a court case to Bath Township. Despite calling the Blue Loop art, Clinton County District Judge Michael Clarizio ruled it violated the township’s junk ordinance. Park faces a $250 fine and a court order to rid his property of the Blue Loop, aside from a single aquamarine toy duck.
But Park and friends are not backing down. Should the township — which has racked up costs exceeding $10,000 — not drop the case, Park is likely to appeal.
DelGiorno, Metros and Park, each older than 70, sat in a half-circle evoking memories of protesting the Vietnam War — a subject on the tip of their tongues thanks to the township’s legal arguments invoking the 1967 case United States v. O’Brien, on a suggestion from Bath Township’s attorney, Christopher Patterson.
The case saw the Supreme Court side against Vietnam draftee David Paul O’Brien, ruling that burning his draft card was destruction of federal property, thus not a First Amendment-protected act of free speech.
The O’Brien case created a legal test for whether a government act violated the First Amendment: “The law must be within the constitutional power of the government to enact, further an important or substantial government interest, must be unrelated to the suppression of speech and prohibit no more speech than is essential to further that interest.”
“The judge heard the testimony of the witnesses and the facts that related to how the township’s ordinance was applied,” Patterson said. “Then it was a question, under those four factors, as to whether the Bath Township ordinance was consistent with the First Amendment. The ruling the judge had is the answer to that is yes.”
Metros was determined to prove that Park’s Blue Loop was indeed art, not junk, thinking that would close the book. But Clarizio ruled that according to the ordinance, art and junk are not mutually exclusive.
“Metros’ presumption is that the two categories of being art or junk are mutually exclusive, which is not the case,” Patterson said. “What Clarizio is saying is that it can fall within the ordinance of being junk and still be considered art.”
Said Metros: “I’m hopeful we’ll be able to resolve this thing — it’s clearly art in my opinion. I don’t want to spend $50,000 of their money, or Robert’s money. I am willing to meet with trustees at any place, at any time to resolve this dispute before it’s appealed.”
So how did Park become a firebrand in a court case that has potential to change how artistic expression is regulated? Flash back to spring, when Park was charged with violating the township’s junk ordinance because the Blue Loop comprises pieces made from repurposed materials, such as old kiddie pools, beach toys, cups, plates, Frisbees — anything blue-hued Park could get his hands on.
“Obviously the reasonable use was art, but it was castoff material. If he had gone out and bought all new blue materials, it may, or may not have, violated our ordinance. But the ordinance says, ‘any castoff material,’” said Dave Vincent, Bath Township ordinance compliance officer. “He pretty much admitted in court that he had been collecting this stuff. He cut out the bottom of some kids’ pools that were thrown away.”
The complaint, according to Vincent, originated from nearby condominium developer Marvin Fouty and a handful of other neighbors, whose names Vincent said he could not disclose.
Though Fouty recanted his complaint well before Park’s Halloween court date, the damage was already done. Vincent had a helpful analogy to explain why:
“I see someone weaving on the highway. I call the police, because I think he might be drinking and driving. So the police come out, they do the breathalyzer and the guy fails,” he said. “Then the guy walks up and I say, ‘Oh, that’s my buddy Bill. I want to drop the charges.’ Well, no —they’ve already done the arrest and need to complete the investigation.”
The township’s decision has not been popular. Metros has a thick stack of emails from supporters and a GoFundMe launched by Park for potential future legal fees, “Save the Blue Loop,” has already accrued $2,000 of its $10,000 goal. And signs printed by DelGiorno bearing the same message have begun popping up on front lawns.
The Bath Arts Council’s chairwoman, Melissa Eggleston, said she wishes the township would simply dismiss the case or adjust the ordinance before it reaches an appeal. Her shop, Eggleston Gallery, has been selling blue ducks — now a symbol for supporters — and plans to host an exhibit of Park’s work in December.
Bath Township Trustee Denise McCrimmon said that while she is glad to see “any township ordinance withstand a judge’s ruling,” she also keeps an open mind to “the opportunity to review our ordinance and make it more art friendly.”
As for the more than $10,000 in expenditures racked up by the township in pursuance of Park, Vincent said: “We have to enforce our ordinances. Sometimes we’re put to task and we have to spend money to enforce our ordinances. That’s the easiest answer.”