Judge: toilet gardens protected by First Amendment

Judge: toilet gardens protected by First Amendment
One of Hank Robar's toilet gardens, as seen in 2015. (Source: WWNY)

POTSDAM, N.Y. (WWNY) - Hank Robar’s controversial toilet gardens are protected by the First Amendment of the U.S. Constitution, a federal judge ruled Monday.

Robar is fighting to save the potties with plants at several properties he owns in Potsdam, after village officials invoked a village law governing “junk” and ordered the toilet gardens removed.

In a 42 page decision Monday, U.S. district Court judge Lawrence Kahn concludes the toilets are both political speech and artistic expression, and 'The porcelain gardens are, in short, protected speech, and the act of displaying them protected expression."

The judge granted Robar an order stopping village officials from enforcing the junk law against his toilet gardens, while the case makes its way through Judge Kahn’s court.

The judge rejected other claims Robar made, including one that village officials are targeting him because of his long-running dispute with the village over the gardens.

Robar and the village have been at odds for 15 years. It started when Robar tried to sell a property he owned to someone who wanted to open a “Dunkin Donuts,” but the village wouldn’t grant him the permissions he needed. That prompted Robar to put up his first toilet gardens as a protest.

Since then, he has said, he’s grown to see the toilet gardens as art.

The village argued that Robar’s toilet gardens hurt property values in the village and even make it less likely parents will send their college-age students to the community’s two colleges.

The judge didn’t buy that.

The village has “not presented any particularized evidence indicating, for instance,that the porcelain gardens have ever posed a risk to any child as an attractive nuisance, or that they have contributed to falling property values, despite having recently conducted a public hearing in which these factual matters presumably were explored,” he wrote.

And he concludes “the government order before the Court, which mandates that all of (Robar’s) porcelain gardens be removed entirely from public view, is likely unconstitutional.”

The decision Monday wasn’t a clean sweep for Robar - the judge refused to give him a ruling that the toilets are not junk. They are, by the village’s definition, the judge notes. “The porcelain gardens are toilets, albeit ones brimming with constitutionally protected expression.”

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