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Leaving a Mark: Artistic Expression, New Media in Protest and Law

June 18, 2018

By Abby Placik and the Center for Art Law Team

Introduction: Writing on the Wall

From 2011 to the present, at least four major protest movements – Occupy Wall Street, Black Lives Matter, Deferred Action for Childhood Arrivals (“DACA”), and #MeToo – have emerged in the United States. To express their beliefs, political activists have used non-traditional artistic materials, “new media” — sidewalk chalk, light projections, and washable paint to creatively circumvent local graffiti and vandalism statutes. Unlike the application of graffiti and street art, the use of non-traditional media is not intended to be permanent or damaging to property. Despite protesters’ attempts to evade graffiti and vandalism statutes, law enforcement has still charged protesters with graffiti, illegal advertising, and defacing public or private property, among other charges.

Should new media used in protest be protected as a form of free speech under the First Amendment? The First Amendment provides the same protection to artistic expression as it does to conduct that communicates cultural, political, religious, or other messages. New media used in protest are a type of artistic expression which communicates cultural, political, or religious ideas. The use of new media tends to be site-specific, for it depends upon public space for maximum impact of its message.

New media do not cleanly fit within the legal definitions of graffiti, street art, and vandalism. Although graffiti and street art may contain political speech, most jurisdictions do not extend First Amendment protection to graffiti and street art. First, new media leave a mark on public and private property. Second, many protesters use them on public or private property without authorization from the party responsible for the property. The degree of First Amendment protection afforded to an individual depends upon the jurisdiction in which he or she is located, and the media through which “speech” is expressed. While state penal codes have similarly written graffiti and vandalism statutes, there are subtleties from state to state that affect what jurisdictions deem to be graffiti or vandalism.

So is the use of new media an act of vandalism or a manifestation of free speech? Are all types of “graffiti” equally treated under federal and state statutes? The following explores whether new media used in protest fit within the legal associated definition of graffiti (e.g. aerosol paint, paste posters, etc.) – which has long been controversial and classified as criminal. This article also addresses the issue of First Amendment protection for new media in public space. Part I discusses the relationship between the First Amendment, artistic expression and content limitations. Part II provides an overview of time, place, and manner regulations on free speech and artistic expression. Part III looks at specific examples of how federal and state statutes define graffiti and vandalism. Part IV summarizes case law to clarify whether there is a difference between “damaging” or “defacing” another’s property. Part V explores recent and current examples of new media used in protest around the United States. Part V uses case law to illustrate how time, place, and manner restrictions affect applications for new media used in protest today.

Part I: Does the First Amendment Protect Artistic Expression ?

The First Amendment of the United States Constitution states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press [emphasis added]; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Free speech and the press are fundamental constitutional rights that are protected by the Due Process Clause of the 14th Amendment from state impediments. “Speech” includes activities that are nonverbal. What is the extent of protection for constitutional rights of free speech and press? “[A]s a general matter, ‘the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’” So how and does this apply to works of art?

The First Amendment does protect certain types of expressive conduct and nonverbal speech. This includes artistic expression, such as painting, music, poetry, and literature. As the Second Circuit has held, “paintings, photographs, prints and sculptures…always communicate some idea or concept to those who view it, and as such are entitled to First Amendment Protection.” For example, in Ecko.Complex LLC v. Bloomberg, a fashion company applied for a street permit for an outdoor art exhibition where artists would paint graffiti on mock subway cars. The City of New York revoked the fashion company’s permit on the grounds that it feared the graffiti demonstration would “incite” others to paint graffiti on actual subway cars. The court held that the City “acted not only unconstitutionally but also beyond its prescribed powers” in withholding the company’s permit. How might the federal, state, and local governments constitutionally place limits on artistic expression?

Limitations on free speech and press have to meet a certain test: “[w]here there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling.” The federal government and state governments may circumscribe free speech the press through legislation. Freedom of speech and the press is subject to the police power of the states in order to maintain civil society. The First Amendment does not protect types of speech such as defamation, fighting words, obscenity, and child pornography. Another limitation to First Amendment protection of free speech is the “clear and present danger” doctrine first formulated in Schenck v. U.S. In Schenck, the Supreme Court held that free speech or written word should not be subject to restraint or punishment unless it presented a “clear and present danger.” In terms of artistic expression, the content limitations are defamation, fighting words, obscenity, child pornography and material that presents a “clear and present danger.”

Artistic expression is a type of speech protected under the First Amendment. Generally, federal, state, and local governments cannot restrict artistic expression based on its message, ideas, subject matter or content. However, federal, state, and local governments may implement limitations on artistic expression. These restrictions must have a compelling interest such as preventing an actual incitement to crime, a breach of the peace, and a social interest in morality. Nevertheless, as this Article will explain in Part II, governments may impose further restrictions on when, where and how protesters use artistic expression.

Part II: Time, Place, and Manner Restrictions

Since the First Amendment does not guarantee the right to communicate one’s views at any time, in any place, and in however manner, time, place, and manner regulations do not violate it. The amount of freedom in terms of time, place, and manner for free speech and artistic expression depends on the forum. There are three forums for expressing free speech and each has a different level of First Amendment protection: the traditional public forum, the designated public forum, and the nonpublic (i.e. private) forum. The government may implement time, place, and manner restrictions as long as it follows a test, as explained in Perry Education Association v. Perry Local Educators’ Association below.

In Perry Education Association v. Perry Local Educators’ Association, Justice White set out three types of forums: traditional public forums, designated forums, and nonpublic (i.e. private) forums. Traditional public forums are places, “which by tradition or by government fiat have been devoted to assembly and debate.” Traditional public forums include streets and parks. However, in the traditional public forum, federal and state governments may “enforce reasonable time, place, and manner regulations as long as the restrictions ‘are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.’” When government regulates speech in a traditional public forum, it may only restrict speech to serve substantial state interests, and the restriction must be finely tailored. In the nonpublic forum, there is “the right to make distinctions in access on the basis of subject matter and speaker identity…[and such distinctions are] compatible with the intended purpose of the property.”

Two seminal Supreme Court cases with regard to the scope of state regulations on free speech and forum analysis were decided in 1984. The first, Members of the City Council of the City of Los Angeles v. Taxpayers for Vincent, considers whether a local statute was too far reaching on it restrictions on free speech. In Taxpayers for Vincent, the City of Los Angeles and public officials sought to enforce a municipal ordinance prohibiting the posting of signs on public property.  A group of supporters for Roland Vincent, a Los Angeles City council candidate, and a sign company entered a contract to create the political support signs. Some of the signs were posted on public property. Following the municipal code, the City’s Bureau of Street Maintenance removed all posters attached to public property. Los Angeles argued that it had an interest in removing “visual clutter.” However, the Supreme Court held that Los Angeles’s total ban on signs on public property was too broad and entrenched upon use of an important medium for political expression, so it was struck down as unconstitutional.

Mahoney v. United States considers viewpoint discrimination based on a group’s religious beliefs. Reverend Patrick Mahoney and other protesters (“plaintiffs”) began preparations for a demonstration on the sidewalk of 1600 Pennsylvania Avenue, N.W., a traditional public forum. The plaintiffs planned to draw verbal and visual messages expressing their religious beliefs against abortion on the 1600 Block promenade with chalk. The Commander of the Metropolitan Police Department sent a letter informing the plaintiffs that chalking the 1600 Block promenade and sidewalks would be defacement of public property in violation of the District’s defacement statute.

The plaintiffs argued that the District of Columbia’s refusal to allow the protesters to engage in “chalk art” demonstrations on the 1600 Block promenade in front of the White House violated the First, Fourth, and Fifth Amendments of the U.S. Constitution, among other claims. Since the 1600 Block promenade is a traditional public forum, the federal government may implement time, place, and manner restrictions as long as they are content-neutral, narrowly tailored, and leave open other channels for communication. Citing Taxpayers for Vincent, the court noted that “the [District of Columbia] defacement statute is not subject to attack under this theory because it is not ‘unconstitutional in every conceivable application.’” In other words, the District of Columbia’s statute still allowed the plaintiffs to protest using other means (e.g. signs, banners, amplified sound). The court noted the federal government had a reasonable interest to protect public property from damage and defacement.

The federal government may also implement time, place, and manner restrictions as discussed in United States v. Murtari. John Murtari came to the James M. Hanley Federal Building in New York City and wrote on the pavement in chalk: “I ♥ Dom, Sen. Clinton Help Us.” Federal employees told Murtari to stop, but he did not and was placed under arrest, issued a summonses for violations and released. On a later date Murtari returned to the Federal Building, wrote several messages in chalk, and was arrested again. Even in a traditional public forum, the court noted that the federal government may implement time, place, and manner restrictions “if they are content neutral, are narrowly-tailored to serve a significant government interest, and leave open ample alternative channels for communication of information.” Therefore, the federal government may limit when, where, and how protesters use new media.

A recent example of a graffiti charge for protest art takes place in a very public forum — the Capitol. Natalie White is a feminist artist, well known for both self-portraits using giant Polaroid photography and performance pieces. Her works are recognized as a major voice for female empowerment. In July of 2016, White ventured on her own Equal Rights Amendment (“E.R.A.”) march from New York to Washington, D.C. When White reached the U.S. Capitol building, she painted “ERA NOW” with washable paint in large, red letters on the pavement. U.S. Capitol police arrested White and charged her with a misdemeanor for vandalising federal property. In January of 2017, White represented herself at the District of Columbia criminal court. The court found her guilty of defacing public property. The area in front the the Capitol is a traditional public forum, so the Government’s restriction must be content-neutral, narrowly tailored, and leave other means for communication.

Time, place, and manner restrictions apply to traditional public forums and the designated public forums. As illustrated in Perry, the federal, state, and local governments may impose these restrictions as long as they are content-neutral, narrowly tailored, and leave other means for communication. Both the federal government and state governments may implement these restrictions on when, where, and how protesters use new media. However, “other modes of communication” does not always leave open the best means for communication. All of the above cases involve written messages. Would courts rule differently if protesters used non-obscene images to express their speech? The Part III examines how federal and state laws define graffiti and vandalism.

Part III: How do Federal and State Laws Define Graffiti and Vandalism?

There is variety in federal and state law definitions of “graffiti” and “vandalism.” Some state statutes explicitly define graffiti, while others do not define it at all. In fact, the United States Code and the Code of Federal Regulations do not define “graffiti.” However, the Code of Federal Regulations defines “vandalism” as “destroying, injuring, defacing, or damaging property or real property.” Vandalism is prohibited in parks, in forests, and on public property, and the law applies “regardless of land ownership, on all lands and waters within a park area that are under the legislative jurisdiction of the United States.” There appears to be a difference amongst federal law and states in terms of defining a “thing” that defaces property and an unauthorized act of making a mark on property. Part II discusses select state graffiti and vandalism statutes.

Under the California Penal Code, “[defacing] with graffiti or other inscribed material” is a factor of the crime of vandalism. California Penal Code § 594 defines “graffiti or other inscribed material” as “any unauthorized inscription, word, figure, mark, or design that is written, marked, etched, scratched, drawn, or painted on real or personal property.” Anyone who “maliciously [defaces with graffiti or other inscribed material, damages or destroys] with respect to any personal property not his or her own, in cases other than those specified by state law, is guilty of vandalism.” According to the California Penal Code, “malice” and “maliciously” are defined as “a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of the law.” While California’s definition of graffiti would include any medium that would leave a mark on property, to be an act of vandalism, a mark would have to be made with malicious intent.

Interestingly, “Making graffiti” is a statute under New York Penal Law. Under § 145.60, “graffiti” is defined as “the etching, painting, covering, drawing upon or otherwise placing of a mark upon public or private property with intent to damage such property.” In contrast to California, New York Penal Law defines “graffiti” as an act with intent to damage property. Furthermore, New York more specifically defines where the creation of graffiti is prohibited. New York law prohibits the making of graffiti “on any building, public or private, or any other property real or personal owned by any person, firm, or corporation or any public agency or instrumentality, without the express permission of the owner or operator of said property.” “Making graffiti” is a class A misdemeanor.

The D.C. Code Ann. § 22-3312.01 (West 2018) (i.e. Defacing public or private property) does not define “damage” or “deface.” Rather the law enumerates many prohibited actions. The law prohibits “all intrusions upon another’s property, regardless of motivation, that tangibly alter the appearance of the property.” Therefore, it is a strict liability criminal statute. In addition, writings or inscriptions upon another’s property are not protected by the First Amendment merely because someone wishes to express an idea. The statute has been used to “prosecute conduct, whether politically expressive or not, that tangibly altered the appearance of public property in the District–including the White House.” So, defacing public or private property in the District of Columbia means tangibly altering the appearance of another’s property.

New media used in protest are not used for the same purpose as graffiti–to damage or deface another’s property. Instead, protesters utilize new media to express their free speech. Nevertheless, some graffiti and vandalism statutes proscribe strict liability regardless of a person’s intent in marking another’s property. Furthermore, the forum where one chooses to express their free speech using new media is either an aggravating or mitigating factor. If the forum is a nonpublic/private forum, then it is an aggravating factor against using new media for free speech. If the forum is a traditional public forum, then it is a mitigating factor for using new media for free speech. Another issue in interpreting graffiti and vandalism statutes is the seemingly interchangeable use of “damage” and “defacement.”

Part IV: Damage or Defacement?

Does “damage” or “defacement” of public or private property share the same meaning? In California, writing with a pen constitutes “defacing,” despite the fact that it can be removed and does not permanently alter the surface. In New York, the “intent to damage” public or private property means the actor acted intentionally in placing graffiti on the property. Whether the defendant actually caused damage is irrelevant for purposes of charges making graffiti. The District of Columbia’s statute prohibits altering the appearance of property of another’s without his or her permission. The below cases shed some light on how courts have interpreted “damage” and “defacement.”

In Mackinney v. Nielsen, the Ninth Circuit clarified California Penal Code Section 594. Berkeley, California resident Christopher Mackinney wrote “a police state is more expensive than a welfare state–we guarantee it” on a public sidewalk with sidewalk chalk. Police officers saw Mackinney and told him that he would be arrested if he did not stop writing.  Mackinney refused to agree to stop writing and asserted his actions were legal. Officer Nielsen ordered the other officers to arrest Mackinney and charged him with violating California Penal Code Section 594, which made it illegal to (1) deface “with paint or any other liquid,” (2) damage or (3) destroy any real or personal property that is not one’s own. Because chalk was not a paint or any other liquid, Mackinney would have to be charged under damage. The Ninth Circuit stated, “[n]o reasonable person would think that writing with chalk would damage a sidewalk.” The court found that chalk did not damage the property.

After Mackinney v. Nielsen, the California legislature amended the phrase “defaces with paint or any other liquid” with and replaced it with “defaces with graffiti or other inscribed material.” In in re Nicholas Y., a juvenile named Nicholas wrote “RTK” (i.e. The Right to Crime) on a glass window of a projection booth at a movie theater with permanent marker. The juvenile court held Nicholas had violated California Penal Code § 594. Nicholas appealed the decision to the Court of Appeals of the Second District in California. He argued that the evidence was insufficient to prove that he violated California Penal Code § 594. The court looked to the meaning of “deface” in the Oxford English Dictionary: “[t]o mar the face, features, or appearance of; to spoil or ruin the figure, form, or beauty of; to disfigure.” The court found that it “does not incorporate an element of permanence” and “the marring of the surface is no less a defacement because it is more easily removed,” so it affirmed the decision of the juvenile court.

Returning to United States v. Murtari (i.e. the case where the defendant chalking the James M. Hanley Federal Building in New York City), the officers charged him with violating 41 C.F.R. § 102-74.380(b), which states, “All persons entering in or on Federal property are prohibited from-…(b) Willfully destroying or damaging property.” The Government argued that the court should not adopt the Ninth Circuit view in Nicholas Y., because the Southern District of New York had held that “provisions prohibiting ‘defacement’ could constitutionally be construed as prohibiting chalking on a public sidewalk.” In other words, defacement was not necessarily damage to property.

The Northern District of New York noted, although chalking could be interpreted as “defacement,” the federal regulation under which Murtari was charged did not prohibit “defacement,” but it prohibited “destroying” and “damaging” property. Government counsel argued that defacement of property is the equivalent of damage to property. Since there was no definition of “damage” in the Code of Federal Regulations, the court turned to New York law. It found that Murtari’s actions did not “damage” the property, even though he “defaced” the plaza with chalk. In several cases, “damage” and “defacement” of property were held to be two different actions, so the court held that Murtari did not violate federal law.

Nicholas Y. and Murtari reflect that jurisdictions do interpret “damage” and “defacement” of property to be two different ways of marking another’s property. “Damage” means general, physical harm to another’s property, which weakens its structure, diminishes its value, etc. “Defacement” is a specific type of physical harm to another’s property, in which the surface of the property is marked with material. As illustrated in Nicolas Y. and Murtari, jurisdictions take a more uniform stance on “damage”, but they vary on whether non-permanent “defacement” of another’s property is vandalism. This Article will examine new media used in protest recently to consider different jurisdictions’ struggles with graffiti and vandalism statutes.

Part V: New Media in Protest Now

Contemporary activists have experimented with new media in an effort to evade damage or defacement of public or private property violations. New media include chalk art, light projections, and washable paint. New media do not necessarily fit within graffiti and vandalism statutes, because they do not “damage” property but temporarily “deface” it. Nevertheless, despite activists’ inventive attempts, law enforcement has charged some individuals with violation of graffiti, vandalism, and other criminal laws. The federal government and state governments have not arrived at consensus as how to treat free speech using new media in protest.

In 2012, members of the Occupy L.A. movement organized a “Chalk Walk” during ArtWalk in Los Angeles to show support for eleven people who had been arrested the previous month for writing on the sidewalk. The event planners hoped to “celebrate [their] right to free speech and remind the Los Angeles Police Department (“LAPD”) and the city of Los Angeles that chalking is NOT a crime.” A main site of chalking was Central City Association headquarters, an advocacy organization for investment in downtown Los Angeles, which they viewed as the “lobby group of the 1%.” According to the LAPD, protesters had chalked streets and buildings. When tensions escalated between protesters and officers, police arrested seven people for vandalism. Protesters had used chalk to make inscriptions, words, figures, etc. on real property (e.g. sidewalks, buildings).

A similar event in New York illustrates the ways in which state statutes diverge. The Illuminator is an art-activist collective based in New York City that shines “projection-interventions” onto buildings, calling attention to current issues. The Illuminator has shone messages on the Trump International Hotel in Washington, D.C., the corner of Bowery and Prince Street in New York City, the Brooklyn Borough Hall in Brooklyn, New York and many other locations. In September 2014, The Illuminator protested the Metropolitan Museum of Art’s dedication of the David H. Koch Plaza, named after the conservative donor who gave $65 million for the plaza’s renovation. The group projected the messages “The Met*/*Brought to you by the Tea Party” and “KOCH = CLIMATE CHAOS/The Met is a museum, not an oil lobby” onto the side of the museum. Police arrested three members of The Illuminator’s projector and charged them for illegal advertising and confiscated the projector. The charges against the three members were later dropped.

Why didn’t law enforcement charge the group with graffiti? First, a light projection is not an etching, painting, covering, drawing, or a mark. Second, the Illuminator did not have the intent to damage the Met. Instead, law enforcement charged the three members with unlawfully posting advertisements – a seemingly possible though indirect description of the collective’s actions as an offense. Unlawfully posting advertisements is when a person who “having no right to do so nor any reasonable ground to believe that he has such right, he posts, paints or otherwise affixes to the property of another person any advertisement, poster, notice or other matter designed to benefit a person other than the owner of the property.” However, the members of the Illuminator did not post, paint or affix a notice or advertisement onto the museum. It seems officers cited the members of the Illuminator with unlawfully posting advertisements, because the projection-intervention did not fit into New York’s graffiti statute.

The above events are only a small sample of new media used in protest. Activists and demonstrators are creative and will find other new media to use in protest. So far, federal and state governments have not decided on a bright line rule on how to address protester’s use of new media. The federal and state governments will eventually need to confront this issue if and when protesters use a new medium to express their free speech in the traditional public forum, which clearly does not fit within graffiti and vandalism statutes.

Conclusion

Depending upon the forum, a protester’s use of new media can be either graffiti or vandalism or a manifestation of free speech. In the private forum, owners of the property may “make distinctions in access on the basis of subject matter and viewer identity,” whereas in the public forum, “these distinctions may be impermissible.” So in the private forum, owners of property may limit access to it based on the subject matter of the new media and the audience that would view it. However, in the public forum, owners of property may not be able to make such limitations on the use of new media. Of course, not all public property is a traditional public forum.

The state governments may place time, place, and manner restrictions on free speech as long as they are content-neutral, narrowly tailored, and leave open other modes of communication. In addition, “the state may reserve the forum for its intended purposes as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.” Therefore, federal and state statutes may even limit when, when, and how protesters use new media to express their free speech. Because federal and state statutes may restrict new media as long as there are other modes of communication, they may even limit the best means for communication. 

Although federal and state restrictions on new media appear to be facially neutral, they are not neutral on the type of artistic expression which is allowed for communication. The effectiveness of certain modes of artistic expression to communicate specific content cannot be ignored. Protesters choose a specific medium because its inherent qualities are most effective in communicating a message. An image is best seen rather than described. Even though the intent behind the use of new media is not the same as graffiti and vandalism, federal and state statutes make the use of new media illegal. Unsure about how to address these situations, local law enforcement has cited protesters with violating graffiti/vandalism illegal advertising statutes as well as issuing trespass notices. At some point, federal and state governments will need to resolve this issue.

Suggested Reading

About the Author: Abby Placik is a rising third-year law student at Case Western Reserve University (“CWRU”) School of Law. This fall, she will work in the Community Development Clinic and conduct research for the International Law Research Lab at CWRU. She has an A.B. in History of Art from Bryn Mawr College. 

From the Editors: The Author and the Center for Art thanks all the editors and contributors to this article for assistance.

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