Wednesday, November 28, 2012
Margaret Mettler (Michigan - Student) has posted Graffiti Museum: A First Amendment Argument for Protecting Uncommissioned Art on Private Property on SSRN. Here's the abstract:
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
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.