A Very Public Private Nuisance

by Greenberg Glusker Fields Claman & Machtinger LLP

Move over Dos Equis guy.  Alan Markovitz may be the most interesting man in the world.

Consider his credentials: Markovitz is a “strip-club entrepreneur” who has been shot twice (once in the face) and “even had a mob contract out on his life.”

But that all seems tame compared to his latest stunt.

Markovitz’s then-wife allegedly “cheat[ed] on him with someone he knew” and then “moved in with the guy.” Markovitz reacted like any scorned spouse would.  He bought the house next door and erected a sculpture of a hand with the middle finger raised in the direction of his ex-wife.  If that wasn’t enough, Markovitz “spent an additional $300 on a spotlight to ensure the statute’s visibility.” (This is a family blog, so we won’t post a picture of the sculpture. But we will link to it.)

Depending on your perspective (and whether you make alimony payments), the sculpture either is inspired or in poor taste. But is it a legal nuisance?

A private nuisance is something that creates a substantial and unreasonable interference with the private use and enjoyment of one’s land (think: a factory that emits a noxious odor).  In determining whether an interference is “unreasonable,” courts consider whether the gravity of the harm outweighs the utility of the conduct.

Courts generally have found that aesthetic nuisances—interferences resulting from “unsightly objects or structures on another’s land”—are not actionable because “unpleasant sights, unlike noises or odors, can be readily avoided.”  But courts also have found that “spite fences”—structures built to annoy neighbors or obstruct their views—are actionable.

There’s another potential complication: the First Amendment.  It may not be Michelangelo’s David, but the middle finger sculpture probably qualifies as art.  The Supreme Court has not “addressed the issue of how art fits into the existing framework of First Amendment doctrine.”  On the one hand (or, more appropriately, finger), “objects that are exhibited outdoors on private property and have artistic value may . . . be regulated if they are found to be sufficiently offensive to minors or to the community at large.” On the other, courts are reluctant to “mak[e] subjective judgments about beauty” on the basis that “unsightly or unaesthetic land uses, while perhaps distasteful, are not unreasonable.”

Reasonable people can disagree on these legal issues.  But we can all agree on one thing: reality TV was invented for someone like Markovitz.  Fortunately, TV executives thought the same thing: Markovitz is set to star in his own reality TV show.  The title? “Topless Prophet.”

Strip clubs, gun shots, mob threats, a middle finger sculpture and a reality TV show?  That settles it.  Alan Markovitz definitely is the most interesting man in the world. Who also happens to raise a pretty interesting legal issue.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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