Graffiti museum: a First Amendment argument for protecting uncommissioned art on private property.

• Author: Mettler, Margaret L.
• Position: NOTE

Graffiti has long been a target of municipal legislation that aims to preserve property values, public safety, and aesthetic integrity in the community. Not only are graffitists at risk of criminal prosecution but property owners are subject to civil and criminal penalties for harboring graffiti on their land. Since the 1990s, most U.S. cities have promulgated graffiti abatement ordinances that require private property owners to remove graffiti from their land, often at their own expense. These ordinances define graffiti broadly to include essentially any surface marking applied without advance authorization from the property owner.

Meanwhile, graffiti has risen in prominence as a legitimate art form, beginning in the 1960s and most recently with the contributions of street artists such as Banksy and Shepard Fairey. Some property owners may find themselves fortuitous recipients of "graffiti" they deem art and want to preserve in spite of graffiti abatement ordinances and sign regulations requiring the work's removal. This Note argues that private property owners who wish to preserve uncommissioned art on their land can challenge these laws under the First Amendment, claiming that, as applied, regulations requiring removal are unconstitutional because they leave the property owner insufficient alternative channels for expression.

TABLE OF CONTENTS INTRODUCTION I. THE ART-LAW DIVIDE A. Graffiti in Mainstream Culture B. Graffiti and Uncommissioned Art Defined C. Municipal Ordinances and Regulations 1. Graffiti Abatement Ordinances 2. Sign Regulations II. FIRST AMENDMENT PROTECTION OF UNCOMMISSIONED ART. A. The Property Owner's Rights B. Uncommissioned Art as Speech 1. Pure Speech 2. Symbolic Speech C. Uncommissioned Art Distinguished from Unprotected and Low- Value Speech III. ARGUING FOR THE TIME, PLACE, AND MANNER TEST IV. APPLYING THE TIME, PLACE, AND MANNER TEST A. Content Neutrality, Substantial Governmental Interest, and Narrow Tailoring B. Alternative Channels 1. Public Visibility and Message Moderation 2. Expense 3. Alternative Channels in the As-Applied Analysis C. Presumptive Protection of Private Property CONCLUSION INTRODUCTION

Rare bookstore proprietor Hedger Breed arrived at his Ypsilanti, Michigan, shop one day and unexpectedly discovered an image spray-painted on the building. (1) The stenciled graphic, about four square feet in area, consisted of a red heart perched atop the head of a human figure, below which a black object pointed toward the figure's open mouth. (2) One interpretation is that the figure is screaming and pointing a handgun at its mouth, (3) although--as with all art--other interpretations are possible. (4) Mr. Breed, who holds a fine arts degree and formerly managed an art gallery, found the piece "charming," "evocative," and reminiscent of the work of British street artist Banksy. (5) He decided to preserve it. An Ypsilanti ordinance officer, however, explained to Mr. Breed that he would have to remove the graphic per the city's graffiti abatement law, (6) which requires that property owners remove all graffiti from their property at their own expense. (7)

Dismayed by the ordinance, Mr. Breed went before the Ypsilanti City Council to plead his case. Mr. Breed explained that he understood the law's purpose, but that he nonetheless was "fond of the graffiti and fe[lt] it promote[d] art in the city." (8) Ypsilanti's mayor was unrelenting: Mr. Breed's only options, the mayor advised, were to "go to court or petition the Council for an ordinance change." (9) Despite his perseverance, Mr. Breed's efforts to preserve the graffiti were unavailing, and he ultimately agreed to remove it from his building. (10) Today, Ypsilanti's graffiti ordinance remains the same as it was four years ago when Mr. Breed discovered the graphic.

Property owners like Mr. Breed who want to keep graffiti or uncommissioned street art (11) on their property must contend with two main forms of regulation. The first are nuisance ordinances, similar to the one enacted by the City of Ypsilanti, that require property owners to remove all graffiti from their property. The second are sign regulations governing signs' size, location, and similarly objective characteristics.

This Note argues that private property owners (12) who wish to keep uncommissioned art on their property can successfully claim that graffiti abatement ordinances and sign regulations, as applied, violate their First Amendment speech rights. Part I provides an overview of the modern history of graffiti and street art, defines these terms, and describes the general contours of graffiti abatement ordinances and sign regulations. Part II posits that uncommissioned art is the property owner's expression and thus warrants First Amendment protection. Part III contends that the time, place, and manner test is appropriate for evaluating the constitutionality of land-use ordinances regulating uncommissioned art. Finally, Part IV argues that when applied to uncommissioned art on private property, these regulations fail the time, place, and manner test by leaving the property owner insufficient alternative channels for expression, and are thus unconstitutional.

1. THE ART-LAW DIVIDE

   While the art world embraces at least some graffiti as legitimate art, the law precludes individual assessment of graffiti based on artistic merit and instead uniformly regards it as a nuisance. This Part highlights these divergent perspectives. Section I.A describes the origins of graffiti, the birth of the street art movement, and the art world's recognition of these genres. Section I.B defines the terms "graffiti" and "uncommissioned art" as they are used in this Note. Lastly, Section I.C outlines the ordinances cities have developed to abate graffiti and regulate signage.

   1. Graffiti in Mainstream Culture

      Despite graffiti having roots in ancient Greek and Roman culture, (13) graffiti writing emerged in the 1960s in Philadelphia (14) and marked a shift from the gang-related, territorial graffiti that flourished in earlier years toward the rising prominence of graffiti as an art form. (15) Graffiti writing is a stylized form of letter composition--also known as tagging--that typically consists of the artist's name or a pseudonym. (16) Street art--essentially "[a]ll art on the street that's not graffiti" (17)--is an outgrowth of the graffiti writing movement. (18) New York artists such as Jenny Holzer and Richard Hambleton in the mid-1970s, and later Keith Hating and Jean-Michel Basquiat, were some of the first associated with the burgeoning street art movement. (19) Today, the line that distinguishes street art from graffiti writing is blurred, with many artists producing works in both genres during their careers. (20)

      A new generation of street artists has revitalized interest in the graffiti and street art genres and imbued them with fresh meaning. Bristol, England, native Banksy (21) is likely the most well-known artist affiliated with the street art movement today. (22) Though he aims to remain anonymous (23) and is known only by his pseudonym, (24) Banksy is renowned for stenciling irreverent, politically charged street art pieces on walls around the globe. (25) Banksy's street notoriety has created a vigorous demand for his canvas-based works, which routinely sell through mainstream galleries. (26) But despite his commercial success, Banksy continues to create uncompensated, uncommissioned street art on walls and bridges throughout the world.

      Street art's rising popularity in recent years is reflected in both films and museum exhibits recognizing the genre. Banksy is credited with directing the 2010 Oscar-nominated documentary Exit Through the Gift Shop, which depicts a thriving, energetic street art subculture. (27) Among the film's dozens of subjects is Los Angeles-based street artist Shepard Fairey, (28) known for his "Obey" sticker campaign featuring wrestler Andre the Giant, and for creating the iconic "Hope" poster promoting then-presidential candidate Barack Obama. (29) The film also features the Space Invaders video game-inspired work of artist Invader, who cleverly integrates tiled mosaics into urban landscapes in cities around the world. (30) Film is not the only medium through which street artists have been acknowledged recently. The Museum of Contemporary Art in Los Angeles hosted "Art in the Streets" during the summer of 2011, (31) one of the first exhibits ever to showcase street art and graffiti. (32) The show was extraordinarily popular, drawing more visitors than any other exhibit in the museum's history. (33)

   2. Graffiti and Uncommissioned Art Defined

      Perhaps in part due to the art world's recognition of street art and the negative connotations evoked by the word "graffiti," art historians seem reticent to refer to artistically meritorious works as "graffiti," preferring the term "street art" instead. (34) The graffiti-street art distinction has no legal significance, however, and municipal ordinances define graffiti far more broadly than the popular conception of the term. (35) Therefore, in the interest of clarity, this Note defines a few key terms early in its analysis.

      First, "graffiti" in this Note means any unsanctioned marking of a surface. This expansive definition reflects how municipalities define the term. It is important to note that this conception of graffiti encompasses what many in the art world call "street art" as well as other related genres--including murals, pieces, throw-ups, graffiti writing, and gang graffiti (36)--as long as the work in question is created without prior authorization from the property owner. Second, "uncommissioned art" in this Note means any graffiti (37) that a property owner wishes to keep on his private property. (38)

      Importantly, this Note does not attempt to define art in any normative sense, nor does it argue that the First Amendment only protects those works meeting some objective standard of...