On the exterior wall of a restaurant in the historic district of Charleston, Burke painted a mural that was publicly visible from the street. His mural is described as carrying an artistic message emphasizing the importance of societal diversity and tolerance. Because of Burke’s hope that the mural would be displayed for an indefinite period of time on the heavily traveled street, thus drawing a wider audience, he accepted a lower than usual fee. Neither Burke nor the restaurant owner applied to Charleston’s Board of Architectural Review (BAR) until BAR noticed the mural and issued a stop work order. BAR denied the permit application, noting the size, scale, impropriety for the historic district, and garish colors.
Burke filed a lawsuit challenging the historic preservation ordinances of Charleston under which BAR operated. The Court found that the ordinances were place and manner regulations under the First Amendment.
To determine their constitutionality, the Court looked at whether:
•The regulation was content-neutral;
•The regulation was narrowly tailored to serve a significant government interest; and
•The regulation leaves open ample alternative channels for communication.
Applying these factors, the Court determined:
•The ordinances were content-neutral because there was no evidence BAR officials intended to stifle the message of the mural, finding instead that the officials only looked at the mode of delivery and its compliance with regulatory criteria;
•Charleston could not promote its interest in maintaining an aesthetically harmonious historic area through other, less broad means that the ordinances at issue; and
•Burke’s work could be exhibited at other locations in the historic district, particularly in interior locations.
Thus, the ordinances were found constitutional, and Burke’s mural was subject to BAR’s orders.
Burke appealed this ruling to the Fourth Circuit Court of Appeals. Burke v. City of Charleston, 139 F.3d 401 (4th Cir 1998). On appeal the Court found that Burke lacked standing, or a right to make a legal claim, to assert a First Amendment complaint. In order to have sufficient standing to sue, a plaintiff must have suffered injury as a result of the defendant’s conduct. The Court reasoned that Burke relinquished his First Amendment rights when he sold his mural to the restaurant owner and thus had no legal interest in the display of his work. As such, Burke did not suffer an injury as a result of the city’s action and therefore cannot satisfy the requirements for standing.