LEGAL DEFIANCE: GOVERNMENT-SANCTIONED GRAFFITI WALLS AND THE FIRST AMENDMENT.

Author:Oeltjenbruns, Kelly
Position:Symposium: The Roberts Court's First Amendment

The caricature face of Maine Governor Paul LePage, wearing a Ku Klux Klan hood and surrounded by the words homophobe, moron, and racist greeted every passerby of the Portland Water District (PWD) in Portland, Maine on September 6, 2016. (1) The image sparked a controversial exchange between local government entities, a rarity since the City of Portland and PWD agreed to provide the hundred-foot wall as a public graffiti site in 2001. (2) City spokeswoman Jessica Grondin said the city "can't do anything because [the graffiti is] sanctioned and it's a matter of free speech." (3) Mayor Ethan Strimling apparently disagreed and asked PWD to paint over the mural, as "equating the governor and his rhetoric [with the KKK] ... is a step too far." (4) Grondin said PWD would not comply with the Mayor's request, though PWD did not condone the message. (5)

Shortly after the mayor called for removal, an unknown party replaced LePage's hood with Mickey Mouse ears, momentarily assuaging Portland's free speech tension. (6) But the vigilante Mickey artist merely postponed confronting the issue, as some in Portland called for the PWD to end its allowance for public art. (7) This presents a familiar question in an unfamiliar context: when the government, at any level, creates a space for artists to paint graffiti without prior design approval, (8) how can--and should--the government censor what is painted on those spaces?

This Note examines that question. Part I discusses a brief history of graffiti and its proliferation in American culture. Part II highlights the issue of government-sanctioned walls and addresses why there has been little, if any, judicial discussion on government regulation of these spaces, despite the prevalence of graffiti in American television, film, clothing, and other industries. Part III hypothesizes as to which legal doctrines would be relevant to a First Amendment or other challenge to government regulation of graffiti walls and argues that courts should consider a legal graffiti wall to be a designated public forum, with all regulations subject to strict scrutiny. Because there is little opportunity for artists themselves to challenge government censorship of legal walls, the government must also exercise self-restraint if it opts to provide these legal walls. Part IV outlines the considerations a government must consider when creating and maintaining a legal graffiti space to facilitate a more robust public discourse.

  1. GRAFFITI AND EXPRESSION

    Graffiti is a powerful means of expression, made of words, images or a combination of the two, in a place where it is neither expected nor (generally) wanted. (9) Graffiti lies at the cross-section of art, vandalism, and political expression and enjoys prevalence in urban American culture. (10) This prevalence comes with a high price tag, however: American cities collectively pay $12 billion per year to remove, cover and abate graffiti. (11) Los Angeles alone spends $7 million annually. (12)

    Both private and government actors employ legal graffiti walls to abate this cost and provide alternative forums for speech. (13) Graffiti walls meet other objectives as well--young people can engage with and develop art skills, legal walls can de-stigmatize an activity commonly seen as deviant, and graffiti can beautify dilapidated communities. (14) To date, there are legal walls in several locations around the world, and many are in the United States. (15) Most legal walls in the United States are privately-owned, but at least three are publicly-owned, government-sanctioned walls. (16) Before delving into the judicial doctrine governing these government-sanctioned art spaces, this Note briefly inquires into the communicative value of graffiti and the current view of graffiti in society.

    1. Who is speaking?

      There is no one homogenous group of graffiti artists--they range from the world-renowned Banksy (17) to local teenagers. Typical artists are young, ethnic minorities, men, and those in a marginal and transitional status. (18) Graffiti requires little economic investment and no requisite skill set, making graffiti accessible to individuals of lower socio-economic status. (19) And older, more experienced artists may continue to paint in the street or work in studios, displaying and selling their work. (20)

      By the 1970s, graffiti had developed into a feature of the youth subculture hip-hop movement. (21) Today, graffiti in urban settings is just one part of a larger graffiti culture. This associative culture may include rites of passage and stylistic similarities, or competitive artistic feats. (22) Rob White, a professor in law and sociology at the University of Tasmania, writes that artists paint for a number of reasons: they love it, it boosts their spiritual well-being, they want to engage authentically with society around them, or they feel a buzz by doing something seen as "deviant" and risky. (23) White writes that painting is often a way of "providing excitement and action, a sense of control and an element of risk." (24)

    2. Where?

      Typically urban settings provide the backdrop for graffiti, but its simplicity allows its creators to paint virtually anywhere. (25) Graffiti's location can be communicative; the impact of gallery-displayed graffiti, for example, may not equal the impact of a mural under a heavily trafficked bridge. (26) This is because, first, different audiences frequent different places--compare a girls' bathroom and a public highway--and second, a message can be place-specific, like an anti-war message on the walls of the Pentagon. (27)

    3. What is the message?

      Artists use their paint to communicate a range of messages. Some are political, like the words "Black Lives Matter" and "No Justice No Peace" recently sprayed on Trump International Hotel in Washington, D.C., reflecting inflamed racial tensions during the 2016 presidential election cycle. (28) Some are reactions to "real and perceived abuses of authority." (29) Some touch on social movements or values, like the Washington, D.C. metro-stop mural commemorating Sean Taylor, a murdered Washington Redskins football player, which has remained since its creation in 2007. (30) Some graffiti is more practical, and is used to mark gang territory or communicate using an "internal language" with other artists in graffiti culture. (31) Some use graffiti to make their presence known, to rise within graffiti culture, and to connect with others. (32) Some paint because painting is something to do. (33)

      Assertions often challenge majority ideologies and institutions. (34) Graffiti artists may find themselves at the margins of social and political life. (35) They may paint to challenge the construction of social and commercial institutions, which they view as a detriment to their success, rather than a benefit. (36) Some artists also contend that the illegality of painting graffiti itself may serve an expressive function, that "risk is part of the form." (37) This illegality may be rewarded in subcultures that afford prominence to more daring graffiti feats and may also serve the expressive purpose of defiance against what artists see as oppressive--or, at least, unsympatheticregimes. (38)

    4. How are they seen?

      Graffiti is largely outlawed by city ordinances, and courts have generally upheld these regulations. (39) The Supreme Court protected the government's right to promote aesthetic values in Members of City Council of Los Angeles v. Taxpayers for Vincent, (40) a case that has since justified laws restricting graffiti paint sales, chalking, signage, and locations where homeless individuals may seek alms. (41) Graffiti may be considered ugly and disruptive to the clean appearance that city companies and engineers work hard to cultivate. (42) Graffiti also hits the pocketbook of American citizens. (43) When painters create graffiti on a public space, the collective community covers the clean-up cost. If they use private space, they trespass in wanton disregard for the property owner's rights of exclusion. Not surprisingly, many disfavor graffiti for these reasons. (44)

      But graffiti often inspires a distaste that goes beyond the aesthetic ugliness and cleanup costs. Graffiti signifies a lack of control, and one graffiti piece can invite more, which in turn snowballs into small-scale criminal activity. (45) The Broken Windows Theory captures this idea. It alleges that small manifestations of crime or desertion can lead to, or invite, more violent crime. (46) In addition, graffiti can symbolize anarchist beliefs or, more moderately, a threat to existing institutions. (47) Graffiti is a direct defiance of authority, one that challenges conceptions of the city as wealthy or "clean." (48) Moreover, visibly unruly graffiti may be uncomfortable to see. (49) It is a reminder of the presence of those who live a different life from other, more affluent residents. (50)

      "Graffiti artists" is thus a broad category of people: the term "graffiti" covers many images and words. White, for example, splits graffiti into categories of political, protest, art, tagger, gang, and toilet graffiti. (51) While a legal graffiti wall will not appeal to all artists, any restriction--regulations, paint removal, et cetera--should apply equally to all artists, regardless of their motivation for painting. For that reason, I intentionally do not limit my discussion to any particular artist or message, (52) as the government would not be able to allow some graffiti and exclude others (unless, for example, graffiti that includes fighting words which incite violence, briefly discussed below). (53) The government could not distinguish "graffiti art," or art with pop culture influences and cultural aesthetic, from "graffiti vandalism," which encompasses gang graffiti and most tagging, and neither do I. (54) While my policy arguments focus largely on graffiti as political expressive speech, I do recognize that many works on a legal wall...

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