Since 2015, Trump’s easily lampoonable mug has exploded onto the canvases of public artists in the form of graffiti. Mildly put, the coverage has been tabloid-esque.
Underneath these optical feeding frenzies, though, is a complex legal debate surrounding whether graffiti, simple or fancy, qualifies as a form of speech protected by the First Amendment.
In a recent entry in the Minnesota Law Review, Prof. Jenny Carroll argued that graffiti is more than crude, illicit scribbling or gang signaling; it is a form of free expression that should exert more weight in U.S. case law.
She admits that the courts have largely had a kneejerk response:
[Graffiti] is the easiest of hard First Amendment decisions. When asked to choose between the tag that appears in the middle of the night on someone else’s property and the possibility that the tag might enjoy an embedded meaning, First Amendment jurisprudence does not […] wax philosophical about the values of equality or democracy or the utility of a free marketplace of ideas. It [criminalizes the act].
That’s to say that when somebody spray-paints a street wall, the legal system has little patience to sit back and consider its artistic merit. Its primary concern, in such a case, is property rights.
This has led courts to largely classify graffiti as a property or nuisance offense.
Former New York City Mayors Rudy Giuliani and Michael Bloomberg both railed against graffiti as “an invitation to criminals [and gangs] and a message to citizens that we don’t care”, contrary to some longstanding findings that a relatively small portion of graffiti is “gang-related.”
Cities spend multimillion-dollar annual budgets to whitewash it. Data scientists estimate that graffiti removal costs between $5 billion and $18 billion annually across the country, including federal allotments.
These moves depend on the argument that graffiti violates private and public spaces. It is sometimes permitted, but often not without laws, regulations, and ordinances. For example, an individual might choose to create graffiti on a space they own while following rules for acceptable content and methods of display.
Defiant public displays, however, continue to incur the wrath of local administrators and property owners.
For that reason, police and prosecutors have gone to extensive lengths to fine, arrest, and charge those creating it. In fact, according to Carroll, the criminalization and prosecution of graffiti are closely linked to broken-windows policing theory, which argues that if police cannot rein in small offenses like vandalism, loitering, and minor drug possession, they will permit a general culture of lawlessness leading to more serious offenses.
But while the author acknowledges that graffiti can cause harm to property, she also questions the motives behind government responses to it.
Did [broken-windows] reduce crime rates, or did it create an atmosphere in which police could justify over-intrusion into citizen’s lives? Did it improve the community’s sense of security, or did it support the increasing militarization of the police? Did it target minority-populated neighborhoods to keep them safe, or to coax their citizenry into submission?
It’s on these latter grounds that she builds her cross-examination of the conventional wisdom on graffiti.
An ‘Affirmative Free-Speech Defense’
Fundamentally, she argues that graffiti is a form of speech, which suggests that it carries some value or meaning for the creator and the receiver.
From this perspective, graffiti is seen not as a sign of blight or neglect, but as a mechanism of expressing marginalized perspectives. In the United States, where large swaths of the population lack the economic power to own property, where urban communities are rapidly gentrifying, and where visible spaces are commercialized, the possibility of expressing dissent through a legally permissible physical display is curtailed.
While the President may be able to place his name on some of the world’s most desirable property, the lowly tagger or muralist, even if equally (or more) politically aware, cannot. The difference is not the value of the message, but the net worth of the speaker. […]
[G]raffiti celebrates and identifies the component parts of the community that might otherwise be lost or silenced under broken windows’ goal of clean streets, orderly citizens, and an economic and legal system that links expression to property rights. Graffiti is a voice that will not be broken or corralled or owned. It is conduct that claims space and, in the process, defies ownership and any other cultural norm that might silence it. For some disenfranchised or marginalized communities, graffiti may be a unique avenue of communication.
A central part of the above argument is that graffiti exists because disenfranchised communities have no other similar forum in which to express the same messages that graffiti can convey. For example, financially distressed communities could struggle to amass the capital necessary to fund an art space where similar work is displayed.
But free alternatives for expression exist, particularly through the internet and social media. That said, graffiti’s role as a voice against authority structures itself cannot be fulfilled if the artist conforms to that authority structure in moving to an ‘approved space.’ In this sense, graffiti could be interpreted as an active expression of political dissent, which is constitutionally protected in many forms other than spray-paint.
The very fact that graffiti is illicit, then, drives graffiti’s value as speech, according to Carroll. There is a value in illicit speech that is undermined by regulations that always prioritize property rights.
Graffiti could also mark a “particularly fraught or significant location”, in which case “there is no available alternative forum that permits communication of the message.,” she wrote, adding “the forum is the message. Restrictions on the time, place, or manner of the speech therefore is a regulation of the content of the speech itself.”
By regulating the forum for graffiti, government would indirectly undermine its content and broader meaning, according to the author.
But if graffiti is speech, it does not necessarily have constitutional value.That is, the contours of the First Amendment must ultimately be interpreted by the courts.
Carroll argued that the law currently privileges property rights over speech rights by default when it comes to graffiti, but by shifting the view of graffiti from vandalism to collective neighborhood speech, legal defenders can challenge the basis for banning graffiti on public property.
Defenders could argue that state enforcers are not as capable of protecting community identity, and by extension determining what constitutes collective speech, as the community itself. Thus, communities could weigh the value of graffiti’s message against the value of the public property where it is created through a homegrown process.
This would also allow community members to act as jurors in determining the strength of speech-based defenses on a case-by-case basis, rather than relying on broad decriminalization of graffiti.
Prof. Carroll is a faculty member at the University of Alabama School of Law. Her article can be downloaded here through the SSRN portal.
Roman Gressier is a TCR news intern and contributing writer. Readers’ comments are welcome.