A child writes “Freddie” with chalk at North and Pennsylvania avenues in Baltimore on May 1. (Sait Serkan Gurbuz/Reuters)

Many state and local governments bar people from writing messages in chalk on public sidewalks, on the theory that it is a form of graffiti (albeit fairly easily washable). Is such a ban constitutional?

1. The federal trial court decision two weeks ago in Ballentine v. Las Vegas Metropolitan Police Department holds that it’s not constitutional, if it’s applied selectively based on viewpoint. Plaintiffs were cited and arrested for chalking anti-police department messages on various sidewalks, including in front of a police station. But plaintiffs alleged that the police department doesn’t cite children who draw with chalk on public sidewalks, or adults who do the same “when the messages are not critical of [the Metropolitan Police Department].” The court concluded that this states a valid claim for selective enforcement (assuming plaintiffs can prove that this selective enforcement has taken place).

This strikes me as quite right under the First Amendment precedents, and it echoes another court’s conclusion in Osman v. City of Orlando (M.D. Fla. 2012):

Particularly since the City has encouraged chalk messages and chalk writing by other groups whose messages showed their esthetic contribution, “civic pride,” or “community involvement,” use of the Ordinance to prevent ephemeral dissemination of political messages offends the First Amendment. The City has allowed and encouraged the writing of messages in chalk on the Plaza sidewalks as part of the Rotary Club art festival, endorsing a Mayor’s Award, and the 2009 Orlando Magic Playoffs “chalk up the streets” campaign. The City’s encouragement of these particular uses of chalk demonstrates the fundamental difference between a temporary marking and a more permanent one (e.g., carving, painting or gluing a message). The City may not selectively interpret and enforce the Ordinance based on its own desire to further the causes of particular favored speakers.

(Note that there’s also a dispute in the Las Vegas case about whether the state law even bans chalking in the first place; but for purposes of this post, I will assume that there is indeed such a ban.)

2. What about selective enforcement based on content, but not on viewpoint — for instance, allowing chalking for hopscotch but forbidding chalking to convey any political or ideological message?

The answer to that depends on whether the surface of the public sidewalks is viewed as a “nonpublic forum” (in which case viewpoint-based restrictions would be forbidden, but viewpoint-neutral ones would be allowed, even if content-based) or as a “traditional public forum” (in which case a content-neutral ban might be allowed, but any content-based ban would be forbidden, whether or not it’s viewpoint-based). Sidewalks are traditional public fora for demonstrations that happen on them, but it’s not clear whether their surfaces are treated as fora for enduring writing (even if the writing is easy to wash off). Compare Members of City Council v. Taxpayers for Vincent (1984) (holding that city-controlled utility poles aren’t traditional public fora).

3. Even independent of selective enforcement, might bans on sidewalk chalking still be unconstitutional, on the grounds that they unduly restrict a valuable medium for communication? Mahoney v. Doe (D.C. Cir. 2011) said content-neutral bans on sidewalk chalking are constitutional; and although the court used logic that might be limited to sidewalks in front of important landmarks (see Jackson v. Williams (E.D. Mich. 2013), so suggesting, some lower courts (e.g., Occupy Minneapolis v. County of Hennepin (D. Minn. 2011) have accepted it as to other places as well:

Even under the standard that applies to speech restrictions in a traditional public forum, the District insists the chalking ban is narrowly tailored to serve a significant government interest. We agree.

First, the Defacement Statute is indisputably content neutral. It prohibits certain conduct (i.e. disfiguring, cutting, chipping, defacing or defiling), including certain expressive conduct (i.e. writing, marking, drawing or painting), without reference to the message the speaker wishes to convey. D.C. Code § 22-3312.01. Nor is there any evidence in the record the District adopted the Defacement Statute “because of [agreement or] disagreement with the message” a speaker may convey.

Second, the District’s interest in controlling the esthetic appearance of the street in front of the White House is substantial. In City Council of Los Angeles v. Taxpayers for Vincent, the Supreme Court upheld a Los Angeles ordinance regulating the posting of signs on public light posts. 466 U.S. 789, 806 (1984). In so doing, the Court stated that “municipalities have a weighty, essentially esthetic interest in proscribing intrusive and unpleasant formats for expression.” This is especially true here, where the special nature of the forum serves to heighten esthetic concerns. See Heffron v. Int’l Soc’y for Krishna Consciousness Inc., 452 U.S. 640, 650-51 (1981) (“Consideration of a forum’s special attributes is relevant to the constitutionality of a regulation since the significance of the governmental interest must be assessed in light of the characteristic nature and function of the particular forum involved.”); White House Vigil, 746 F.2d at 1534-37 (describing the special esthetic considerations relevant to restrictions on demonstrations at the White House).

The Defacement Statute is also sufficiently tailored to serve the District’s esthetic interest. It is the tangible medium — chalking — that creates the very problem the Defacement Statute seeks to remedy. The same was true in Taxpayers for Vincent, where the Court noted “the substantive evil — visual blight — is not merely a possible by-product of [posting signs], but is created by the medium of expression itself.” Undoubtedly, the Defacement Statute encompasses some expressive activity. But “when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.” It is true, the defacement at issue is temporary and can be cured. But the same was true in Taxpayers for Vincent. The government can proscribe even temporary blight.

Finally, the District’s threatened use of the Defacement Statute leaves Mahoney with alternative channels of communication. The District granted Mahoney approval to conduct an assembly in front of the White House, for which he was “permitted to possess signs and banners.” . . . Mahoney was free to announce any “verbal” message he chose. And, Mahoney could depict visual messages on signs, banners and leaflets. Thus, ample alternative channels of communication existed.

In sum, the Defacement Statute is content neutral, and substantially justified by the District’s esthetic interest in combating the very problem Mahoney’s proposed chalking entails — the defacement of public property. Because the District did not curtail Mahoney’s means of expression altogether, and allowed him to protest in front of the White House in other ways, the Defacement Statute is not unconstitutional as applied.

For a contrary view — that the government’s aesthetic interest isn’t really that strong when it comes to sidewalks, which are neither as starkly visible as, say, billboards or even leaflets on poles, and which are generally not supposed to be nice-looking or unobtrusive — see Marie Failinger, “Talking Chalk: Talking Chalk: Defacing the First Amendment in the Public Forum,” 115 W. Va. L. Rev. 755 (2012) (some paragraph breaks added):

[I]t is difficult to imagine a worse place to make an argument for aesthetic harm than a public sidewalk. Traditionally, vandalism or graffiti cases have involved aesthetic “marring” of buildings. These buildings have deliberate design elements of color, size, shape, and texture that are meant to evoke a response from the viewer, even those buildings designed primarily as functional, such as strip malls or skyscrapers. An owner or passerby cannot avoid seeing the aesthetic change to a building, even if she immediately averts her eyes.

By contrast, the sidewalk is quite literally “beneath notice”: people walk on it and may not even notice a chalk drawing, unless it is a large or arresting installation. If the viewer is intentionally looking at the graffiti, we may assume that she finds some interest or even value in what is written there, and may not see the chalking as off-putting or a nuisance.

However, even if the courts hypothesize that citizens are mostly hyper-vigilant about what they walk on, the assumption that temporary political chalk graffiti on the sidewalk “blights” or “mar[s]” the surface takes the notion of aesthetic damage well beyond any reasonable understanding of what that term might mean in most circumstances. Public sidewalks are, for the most part, blank squares of gray concrete.

Occasionally, a fashion forward jurisdiction may attempt to create some kind of aesthetic design on the ground in its public plazas by, for example, varying the color of slabs that make up the plaza, or using stonework or other materials to change the color or surface of a public plaza. For example, in Mahoney, the court had evidence of an extensive and expensive remodel to the area in front of the White House, including specially designed (and easily stainable) sidewalk pavers the National Capital Planning Commission and the National Park Service used to make the area more “attractive.” In these very limited areas, where there is a high likelihood of permanent damage that will be costly to remove, a “defacing” ordinance might be more sensibly applied.

Similarly, there will be unique locations that demand special protection from even temporary defacements: a chalk picture on the cobblestones of Williamsburg will change the aesthetics in a much different way than a similar drawing on the sidewalk of a busy city, for example. In Mahoney, the D.C. Court of Appeals suggests that there is a substantial “interest in controlling the aesthetic appearance of the street in front of the White House” by “‘proscribing intrusive and unpleasant formats for expression,’” because it is a forum with “special” characteristics. That may make sense given the large number of tourists who come there every day. But these examples are the exception rather than the rule, calling for a much more “narrowly tailored” law than those currently being enforced.

Given that a typical sidewalk slab is a blank canvas of gray, it is difficult to imagine what kind of chalk artwork, even if a message, could “mar” or “damage” its drab aesthetics. Arguably, most chalk art improves a sidewalk, either because it provides an artistic lift that the cold slab cannot, or because it communicates to the reader in words or symbols. This fact suggests that the state’s interest is not aesthetics as normally understood, but the absence of aesthetics, e.g., the drive to create a uniform surface that does not draw attention to itself.

Although this interest might rise to significance in a semi-enclosed government space where an aesthetic change or challenging message might slow the passage of large crowds — as, say, in an airport or Grand Central Station — this is not the situation in most of the chalking cases, where the chalker is a lone “speaker” in a large public space or one of a small number who are protesting without blocking pedestrian movement. Indeed, one might argue that in situations where free movement is especially important, a chalked sidewalk is less likely to impede crowd movement than a human protester standing on the sidewalk or in the plaza with a sign or leaflets to hand out to passersby; both activities have been held to be protected speech so long as they do not unduly block passage.