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Wednesday, February 22, 2017

Burning your own cross on your own lawn?

A couple in Stamford, CT had a racial slur spray-painted on their garage door. Convinced that the police are not doing enough to investigate the incident, they have refused to paint-over or cover the word. In response, the town is moving to cite them for having blighted property, which would result in a fine of $100/day. The NAACP has gotten involved, although the stories do not (yet) mention the First Amendment.

That citation and fine should raise First Amendment problems. Although the blight ordinance is content-neutral, leaving the word on the garage is expressive in several respects: 1) the word has obvious political content; 2) the homeowners can be seen as reappropriating someone else's hate speech;and 3) the purpose behind their actions is itself expressive, as an act of protest against what they see as police wrongdoing. Plus, the blight ordinance is not being applied content-neutrally here--the conclusion that the garage is blighted is justified only with reference to the content or message expressed by that word.

Posted by Howard Wasserman on February 22, 2017 at 06:01 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink

Comments

A racial slut? I admit that makes the sentence much more interesting.

Posted by: YesterdayIKilledAMammoth | Feb 22, 2017 6:30:58 PM

If the ordinance is applied to any grafitti, no matter the message or lack thereof, then it is being applied content neutrally. According to the reports I read (and common sense) the town said that any grafitti is blighty. The fact that this grafiti is communicative does not make the law not content neutral.

Posted by: biff | Feb 22, 2017 8:29:20 PM

It's Section 146-45(9): "It has been vandalized, or otherwise damaged to the extent that it is seriously depreciating property values in the Neighborhood."

However, it's unlikely that it has seriously depreciated property values already, unless a neighboring house was for sale at that moment.

Posted by: Derek Tokaz | Feb 23, 2017 11:29:30 AM

I think that the use of the term, "graffiti" is obscuring the issues here. May I suggest a couple of hypotheticals:

1. My neighbor is a Trump supporter. I am not. I scrawl "Trump sucks" on my garage.
2. Same as #2, but I scrawl the message on my own garage

The first is graffiti, but the second is not, because because the term "graffiti" assumes that the property owner does not consent to the writing. (Just as a perfect copy of the Mona Lisa is vandalism if someone paints it on my windshield). Presumably, the city could not force me to remove #2 under an anti-graffiti law (tho perhaps on a content-neutral "no writing on walls" statute.

Here, the homeowners arguably have transformed #1 into #2, EXCEPT that they are not endorsing the content. Instead, they are using it to send a secondary message: "Look what kind of neighborhood this is; people go around writing hateful messages on neighbors' walls," of perhaps, "See? Racism is alive and well." So, perhaps the city's effort to force removal of the message is really a time/place/manner restriction? Or really that they are primarily concerned with secondary effects?

On that last point, is there case law that looks at secondary effects that are solely the result of content? Eg: I am pretty sure that "Crips rule" graffiti drives down property values a lot more than "Love conquers hate" graffiti does - can a city focus its anti-graffiti enforcement on the former, rather than the latter?

Posted by: gdanning | Feb 23, 2017 11:34:36 AM

Derek Tokaz cites the ordinance.

Is there evidence that the community would blithely let other vandalism of this sort be (such as if graffiti taggers spray painted the garage door without using a racial epithet)? If they ONLY would enforce it against certain expression, I can see the argument that it's not really content neutral.

But, given how communities have gone after people with too many Christmas lights and the like, it isn't clear to me that this is the case. It very well might be that the only "blight" of this sort is this specific graffiti. The use of the word, especially given children around, is clearly particularly upsetting. Still, other graffiti let be still might be targeted.

An argument that "seriously depreciating property values" is not met sounds reasonable. The term also sounds vague, which would also raise 1A issues, perhaps.

Posted by: Joe | Feb 23, 2017 12:41:20 PM

Thanks to Joe and gdanning for fleshing out some of the First Amendment arguments. A couple of quick responses:

1) Secondary effects cannot be based on audience reaction to speech--people don't like the message, people don't buy property, property values drop. The secondary effects the Court allowed for involved crime that sprang up around adult theatres, not necessarily as a reaction to the movies.

2) If graffiti/vandalism means any art or message on a house, it could run afoul of City of Ladue v. Gilleo, which said that a blanket ban on a uniquely available form or medium of expression in the home (there, it was lawn signs) violated the First Amendment, even if content-neutral. So if you are right that graffiti/vandalism means doing it to someone else's property, banning "painting on houses" comes close to banning that medium.

Posted by: Howard Wasserman | Feb 26, 2017 12:10:54 PM

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