by Justice William W. Bedsworth

Yep. That’s what it says. A juxtaposition of words you’ve probably never seen before.

Let me explain. Please.

But first let me explain how it is that unlikely conglomeration of words popped into my brain. I have to do that first because I’m pretty sure that under California law, once you type that, proceedings under Welfare and Institutions Code Section 5150 are instituted automatically, and I need to move fast to head those off.

The State of New Hampshire has a problem. Two problems, actually. Its court system has to deal with a pair of difficult decisions. No, they don’t involve dancing neon penises in top hats. Be patient; we’ll get there.

No, the immediate problem in the New Hampshire court system is that contrary to what we learned in physics class, escape velocity is not the only limitation on gravity. Two different governments in New Hampshire are grappling with the legal equivalent of some of Sir Isaac Newton’s laws of physics. They’re struggling to figure out whether everything that goes up must come down.

The town of Conway is trying to take down a mural on the roof above a donut shop.¹ The mural depicts sunrise—or sunset—over a pastoral mountain scene behind a line of oversized doughnuts and muffins. There are no words on the mural.

In the minds of the high school students who painted it, it’s art. In the minds of the Conway City Council, it’s a sign. And it exceeds the town ordinance limiting the size of signs. So while they allowed it to go up, they now believe it should come down. The students and the donut shop are fighting that conclusion.

The judicial canons of ethics do not allow me to weigh in on this dispute. Judges can’t comment on “pending or impending cases.” Nor could I, since I just told you everything I know about the case, and that’s not enough to pick a winner in this dispute. But I can tell you I do not envy the judge who’s going to decide it.

At the same time, New Hampshire’s state government is wrestling with a similar problem. Earlier this year, the state approved and erected a historical marker commemorating the birthplace of Elizabeth Gurley Flynn, a founder of the American Civil Liberties Union known as “The Rebel Girl” who fought for civil rights for women early in the last century. A green and white sign on a post by the road was erected with information about Ms. Flynn.

Two weeks later, two Republican state legislators expressed their feelings that commemoration of the life of an avowed communist who served a prison sentence for advocating the overthrow of the United States government, and who died in Moscow, was inappropriate. The marker was taken down.

Now that one’s in court. Lawyers are girding up for Marker Up v. Marker Down. And I can’t talk about that one, either.

But these two remind me of one of my favorite legal stories. And since it’s about events that took place decades ago, I think I can feel confident it doesn’t involve a “pending or impending” case. This is where the dancing neon penises make their appearance.²

I went back and found the article from the Los Angeles Daily Journal that introduced me to this story. It said, “A jury refused to award damages to an artist whose sculpture—which included dancing neon penises in top hats—was dismantled by the city of Buffalo.”

If I hadn’t promised my editor 1500 words, I’d just stop now. I mean, I can’t top that.

Dancing neon penises. In top hats. Awesome.

How could I possibly make that any funnier than it already is? That is quite simply the most astonishingly lunatic idea I’ve ever encountered. Trying to improve on dancing neon penises in top hats would be like painting eyebrows on the Mona Lisa.³

I can’t even read that phrase without laughing. I wanted to make it the title of my first book but my publisher talked me out of it. The fact there was a brain anywhere in the universe that could think that up makes me proud to be a member of this cosmos.

I’m just saddened there wasn’t room for it in Buffalo. I rather like Buffalo. I pass through it often on my way to the Finger Lakes. I’ve had a couple of good meals there. If they still had dancing neon penis statuary, I probably would have stayed longer. At least once.

But it was not to be. “Green Lightning,” the sculpture in question, only lasted five days. That’s when the mayor ordered it taken down, calling it “an embarrassment to the city.”

That seems a little harsh, doesn’t it? I mean, Philadelphia didn’t have Charles Barkley dismantled, and there were plenty of people who considered him a civic embarrassment.⁴ I rather like Barkley, but then again, I wouldn’t have taken down “Green Lightning,” so I may not be someone you want to bring on as an arbiter of good taste.

But in fairness to the city fathers—and mothers—of Buffalo, that is not a call you have to make many times in your life. They probably hadn’t had much experience with dancing neon penis decisions.⁵

And I’m sure they felt a certain urgency about their decision. I mean, just how long can you expect the youth of a city to be exposed to something like this with­out . . . uh, without . . . well, without doing whatever it is dancing neon penises in top hats incite?

The jury⁶ didn’t see it that way, though. They agreed the sculptor’s rights were violated by the disassembly of his work but they were unconvinced the sculpture had been damaged.⁷

They also rejected his plea for damages for emotional distress. I think they probably got that one right. I just somehow suspect this is a man whose emotions are not easily distressed. If someone with no money is “judgment-proof,” I think it can be safely said that someone who contracts with a city to provide them a large artwork and responds by constructing a sculpture that includes fifteen-foot-tall dancing neon penises in top hats is “emotional distress”-proof.⁸

But let’s not lose sight of the fact the sculptor prevailed in his argument that his freedom of expression had been violated when “Green Lightning” was debuilt.⁹

I don’t know about you, but I’m pretty sure this is what Thomas Jefferson had in mind when he and his rowdy friends wrote the Bill of Rights. I recognize that there will be a few constitutional scholars who will cavil that there is not a scintilla of evidence to indicate that anyone—in the entire two plus centuries of this country’s existence prior to “Green Lightning”—had ever previously thought about dancing neon penises in top hats. Nonetheless, I am sure the founding fathers would have meant for the First Amendment to cover it.¹⁰

Certainly this would have been clearer if the amendment had been adopted in its original form, which included “freedom of speech, assembly, religion, press, naked rhino mud-wrestling and brightly-colored sexual organs adorned in formal headwear,” but even though this was not the language selected for the final draft, it’s clear this was the spirit of the amendment, and the jury seems to have had no trouble discerning that spirit.

Nor did Chicago. They bought the sculpture and erected it after Buffalo took it down. It was on display there for years, until the century began winding down and they decided they needed something more avant garde. Pity.

It now resides in a warehouse in Cleveland. The sculptor is still around. Asked whether he would put it back up in Buffalo, he responded, “Any time.” He’d probably feel the same way about your town.

BEDS NOTES

1. I prefer the more formal “doughnut,” but if you want to Google this so you can see the mural and decide for yourself, new hampshire donut mural is the fastest way.
2. So to speak. To the immense relief of my editors, this is a figure of speech rather than a location.
3. No, she doesn’t. Find a copy and look at it.
4. Although they did eventually trade him to Phoenix for two ushers and a clipboard.
5. At least not much they wanted to admit.
6. Wouldn’t you have loved to hear this case? I’ll bet there wasn’t a single juror who claimed hardship.
7. That must have been an interesting issue. What would you look for? A dent? A scratch? A bruise?
8. By which I mean this has to be a person of immense emotional fortitude. You don’t erect fifteen-foot red—did I mention they were fire-engine red?—neon penises without expecting pushback.
9. “Unbuilt?” “Disassembled” seemed too disturbing an image.
10. Remember, Jefferson is the guy who coined the phrase “pursuit of Happiness”—yes, he capitalized “Happiness”; my kind of guy—and later cut holes in his foyer floor so the clock he designed would fit. History suggests he was no stranger to unusual thoughts.

William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. A Criminal Waste of Space won Best Column in California in 2018 from the California Newspaper Publishers Association (CNPA). And look for his latest book, Lawyers, Gubs, and Monkeys, through Amazon, Barnes and Noble, and Vandeplas Publishing. He can be contacted at william.bedsworth@jud.ca.gov.