Burke v. City of Charleston

Burke v. City of Charleston, 139 F.3d 401 (4th Cir 1998), is a published opinion from March 1998 from the Fourth Circuit of the United States Court of Appeals.   It vacated the District Court opinion in Burke v. City of Charleston, 893 F.Supp. 589 (1995). Mr. Burke was a painter who utilized a pop art style.   With the tenant’s permission, he painted a mural on the wall of a commercial building in Charleston’s historic district.  The City of Charleston ordered that his mural be covered up, claiming that it was not historically or architecturally appropriate for downtown Charleston.

Mr. Forman was co-counsel for Mr. Burke in a lawsuit he then brought in Federal District Court against the City of Charleston.  His lawsuit alleged that the city violated his right to free expression by ordering that the mural be covered up.  The city argued that its decision to order the mural covered was a reasonable “time, place or manner” restriction on Burke’s right to free expression.  At trial the lower court decided that the city did not violate Burke’s first amendment right to free expression by ordering his mural covered up and we appealed.  Mr. Forman assisted in the briefing but did not argue the appeal, which was primarily handled by attorneys from The Thomas Jefferson Center for the Protection of Free Expression.

The Fourth Circuit, in a 2-1 decision, ruled that Burke lacked the right to bring the lawsuit because he did not own the mural at issue.  It was a heartbreaking decision.  I sometimes reflect upon the final sentence of Judge Wilkinson’s dissenting opinion: “Under the majority rule, if the state boarded up the ceiling of the Sistine Chapel, Michelangelo could not contest the action in court.”