Graffiti Museum: A First Amendment Argument for Protecting Uncommissioned art on Private Property

Graffiti has long been a target of municipal legislation that aims to preserve property values, public safety, and aesthetic integrity in the community. Not only are graffitists at risk of criminal prosecution but property owners are subject to civil and criminal penalties for harboring graffiti on their land. Since the 1990s, most U.S. cities have promulgated graffiti abatement ordinances that require private property owners to remove graffiti from their land, often at their own expense. These ordinances define graffiti broadly to include essentially any surface marking applied without advance authorization from the property owner.Meanwhile, graffiti has risen in prominence as a legitimate art form, beginning in the 1960s and most recently with the contributions of street artists such as Banksy and Shepard Fairey. Some property owners may find themselves fortuitous recipients of "graffiti" they deem art and want to preserve in spite of graffiti abatement ordinances and sign regulations requiring the work's removal. This Note argues that private property owners who wish to preserve uncommissioned art on their land can challenge these laws under the First Amendment, claiming that, as applied, regulations requiring removal are unconstitutional because they leave the property owner insufficient alternative channels for expression.INTRODUCTIONRare bookstore proprietor Hedger Breed arrived at his Ypsilanti, Michigan, shop one day and unexpectedly discovered an image spray-painted on the building.1 The stenciled graphic, about four square feet in area, consisted of a red heart perched atop the head of a human figure, below which a black object pointed toward the figure's open mouth.2 One interpretation is that the figure is screaming and pointing a handgun at its mouth,3 although-as with all art-other interpretations are possible.4 Mr. Breed, who holds a fine arts degree and formerly managed an art gallery, found the piece "charming," "evocative," and reminiscent of the work of British street artist Banksy.5 He decided to preserve it. An Ypsilanti ordinance officer, however, explained to Mr. Breed that he would have to remove the graphic per the city's graffiti abatement law,6 which requires that property owners remove all graffiti from their property at their own expense.7Dismayed by the ordinance, Mr. Breed went before the Ypsilanti City Council to plead his case. Mr. Breed explained that he understood the law's purpose, but that he nonetheless was "fond of the graffiti and fe[lt] it promote[ d] art in the city."8 Ypsilanti's mayor was unrelenting: Mr. Breed's only options, the mayor advised, were to "go to court or petition the Council for an ordinance change."9 Despite his perseverance, Mr. Breed's efforts to preserve the graffiti were unavailing, and he ultimately agreed to remove it from his building.10 Today, Ypsilanti's graffiti ordinance remains the same as it was four years ago when Mr. Breed discovered the graphic.Property owners like Mr. Breed who want to keep graffiti or uncommissioned street art11 on their property must contend with two main forms of regulation. The first are nuisance ordinances, similar to the one enacted by the City of Ypsilanti, that require property owners to remove all graffiti from their property. The second are sign regulations governing signs' size, location, and similarly objective characteristics.This Note argues that private property owners12 who wish to keep uncommissioned art on their property can successfully claim that graffiti abatement ordinances and sign regulations, as applied, violate their First Amendment speech rights. Part I provides an overview of the modern history of graffiti and street art, defines these terms, and describes the general contours of graffiti abatement ordinances and sign regulations. Part II posits that uncommissioned art is the property owner's expression and thus warrants First Amendment protection. Part III contends that the time, place, and manner test is appropriate for evaluating the constitutionality of land-use ordinances regulating uncommissioned art. …