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

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.