By Frank LoMonte (Special to Cyclists International)
On Sunday, five cyclists were stopped from chalking their remembrances of slain cyclist Patrick Wanninkhof in Piermont, NY, and threatened with arrest if they did not erase their musings.
Chalking for Patrick on Sunday was ordered erased by the Piermont, NY police. Were they out of order, or reasonable in asking for the erasure?
All across the country, conversely, their fellow riders from Bike&Build met no resistance or threats in the communities where they “chalked for Patrick.”
So we asked Frank LoMonte, Executive Director of the Student Law Press Center to weigh in on the matter, and let us know whether the actions by the Piermont Police was heavy-handed, or perhaps, evenly handed. This is the answer we received:
In New York State, a federal district court has upheld the constitutionality of an ordinance against defacing public property with chalk.
The ordinance was challenged in a 2001 case, Lederman v. Guliani, in which art vendors were arrested for using chalk messages to protest a city permitting system that prevented from selling their wares on the street. A U.S. district judge found that the ordinance was valid on its face because it targeted only a method of expression and not the speaker’s message.
But the judge left open the possibility that an arrested person might have a successful constitutional challenge if there was proof that police selectively enforced the ordinance to target a particular disliked speaker or disliked viewpoint.
Selective enforcement challenges are notoriously hard to win. It’s not enough to show that other people got away with violating the same ordinance for which you were prosecuted — otherwise, everyone could get out of a speeding ticket by proving that the highway is full of other speeders who didn’t get pulled over. So it’s necessary to actually prove an intent to single out a specific speaker or a specific message, which is hard to do.
The police could respond by saying that they make arrests (or at least threaten arrests) when they receive complaints, as it sounds like they did in the case of the Piermont chalking, so that would be a “viewpoint-neutral” explanation for enforcing the rule against these artists.
“Lean on me, when you’re not strong, and I’ll be your fr (amily)” read one of the chalkings that was ordered erased by Piermont Police today.
Chalking seems like a totally harmless and short-lived way for people to express themselves, and there’s a temptation to just ask the authorities to lighten up and save their law enforcement resources for real crimes.
But there’s a legitimate counter-argument that a city is better off categorically banning chalk graffiti rather than selectively enforcing the ban message-by-message. If the police start getting into the business of picking-and-choosing which messages they subjectively think are unsuitable, that’s when First Amendment problems really start.
So from a legal standpoint it may be the safest course for the city to categorically ban the entire method of communicating, which they can defend as being about cleanliness and not about the message.
It also makes a difference where the chalking is located, and how easy or hard it will be to defend that chalking depends on the location. The police will have a stronger argument that they can enforce a no-chalking ban when the artists are in the street — where just the mere act of kneeling down to write a message might be unsafe and might delay traffic — as opposed to, let’s say, some remote stretch of walkway in Central Park where cars don’t go.
So I think this particular situation is doubly problematic from a constitutional standpoint because of the use of the street.
I wish I could say that I think there is a clearly protected constitutional right to do this kind of artwork, which obviously is harmless, well-intentioned and heartfelt, but I’m pessimistic that the law would recognize a First Amendment right to use public streets for expressive activity of this kind.