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Fred, Dino And The First Amendment

the Flintstone House in an all-orange paint job, seen from a distance.
The "Flintstone House" in 2007. Photo by Beatrice Murch.

Civic leaders in Hillsborough, California, clearly are not in touch with their inner 7-year-old, judging from their churlish reaction to a collection of dinosaur statues in their community. But their campaign to rein in the “Flintstone House” is likely to fail.

The town sued homeowner Florence Fang in March, alleging that she violated local laws through her landscaping choices. The home itself dates from the 1970s, and its distinctive shape is visible from Interstate 280. Fang, the former publishers of the San Francisco Examiner, purchased the property in 2017. She subsequently added large metal sculptures of dinosaurs and characters from “The Flintstones,” as well as a staircase, a parking strip, a retaining wall, a deck and a sign with Fred Flintstone’s catchphrase marking the driveway.

The Flintstone House was already a Bay Area landmark, notable for its unusual shape and its purple and orange paint job (which predates Fang’s ownership). Fang decided to make the property her own. Besides the aforementioned Flintstones characters and dinosaurs, she installed eye-grabbing lawn decorations including a giraffe, a mammoth and dozens of colorful mushrooms. She uses the property as a “personal retreat,” as well as a venue for hosting parties and charitable events.

The lawsuit is an escalation of a longer conflict between Hillsborough and Fang. Assistant City Attorney Mark Hudak told the San Francisco Chronicle that Fang ignored three orders to stop the project. Last year, officials labeled the property a public nuisance and claimed Fang had proceeded without necessary permits or design review. A code enforcement panel labeled the property a “highly visible eyesore” and fined Fang $200, ordering her to remove the landscaping features by December 2018. Fang paid the fine but did not remove the statues. The new lawsuit asks a judge to force Fang to remove the dinosaurs and TV characters from her yard.

Fang says that she has cooperated with the city to make changes, but they kept moving the goal post. Now she has announced plans to countersue the town. Her attorney, Angela Alioto, said that Hillsborough violated Fang’s First Amendment rights, among other reasons for her lawsuit.

Fang’s chances of winning look pretty good. That’s because the action against her comes from a local government, rather than a homeowners association. An HOA is governed by community covenants, which are a contractual arrangement. If I choose to join an HOA, I may voluntarily give up certain legal rights I possess in return for other rights and benefits granted to me as a member of the association. This may well include the right to make external modifications to my property.

The principle would be the same if I paid you to enter into a nondisparagement agreement in which you promised to refrain from referring to me as either a schlemiel or a schlimazel. (Technical note: A schlemiel is the waiter who spills soup on a customer. A schlimazel is the customer upon whom the soup is spilled.) You have a First Amendment right to express your opinion that I am one of those things, or even both. But I have paid you to surrender that right and, as a general rule, I can get a court to enforce that agreement.

There is no HOA involved at the Flintstones House, however. There is only a local government that is trying to limit what is arguably a form of artistic expression. The rule for government limitations on speech, including limitations imposed by zoning and other land use regulation, is that there must be a compelling interest in the limitation and that the limitation be imposed in a content-neutral way. In other words, the subjective determination that the statues in question are ugly is not a good enough reason. As soon as government officials begin taking positions based upon matters of taste or preference, they are in trouble.

Depending upon how much in the way of time and resources each side is willing to commit to this battle, Fred and the gang are likely going to stick around. That is welcome news, because the principles embodied in the First Amendment go back to the colonial history of preindependence America. Fred Flintstone, of course, goes back even further.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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