NYCLU Supports Artistic Freedom Lawsuit

It is well recognized that laws touching on free expression must be “narrowly tailored” and carefully designed so as not to encroach unnecessarily upon First Amendment freedoms. When measured against constitutional standards, New York City’s effort to deter illegal graffiti by criminalizing the possession of spray paint and indelible markers cannot be sustained. The New York City Administrative Code provision governing the sale and possession of spray paint and indelible markers constitutes a crude and burdensome law that sweeps far too broadly to satisfy constitutional strictures.

In criticizing this enactment, the NYCLU offers no brief in support of illegal graffiti. We recognize that individuals have no right to place graffiti on private or public property without the permission of the property-owner. But imagine if, during the days when seditious libel was regarded as unprotected expression, the government, in order to deter seditious publications, made possession of a printing press unlawful unless the possessor of the printing press could affirmatively prove at trail that the printing device would be used for a lawful purpose. Or suppose that in an effort to deter the creation of constitutionally unprotected pornography, the government were to make the possession of a video camera unlawful unless the possessor of the camera could, affirmatively prove, in response to a criminal prosecution, that the camera would be used for a lawful purpose. We would commonly recognize such government over-reaching as constitutionally impermissible.

The New York City enactment similarly sweeps far too broadly. It imposes unnecessary burdens on individuals who choose to use spray paint and markers for perfectly permissible reasons and exposes such innocent expressive conduct to potential prosecution and criminal liability. The NYCLU, therefore, supports plaintiffs’ lawsuit in Vincenty v. City of New York and wishes plaintiffs and counsel success in this litigative effort.