By Jenny E. Carroll. Full text here.
Graffiti resides at the uncomfortable intersection of criminal law and free speech rhetoric. It is not the shout of revolution to the gathered, protesting masses, or the political pamphlet flung from a 1920s window. Graffiti is not the obscene-rendered-political-jacketed protest of war, or a flag set aflame in the name of reclaiming patriotism. It is an illicit scrawl. It is damage and defiance rolled into one from the moment of its creation. Graffiti is a crime.
Unlike more celebrated examples of free speech, graffiti earns no safe harbor from the First Amendment. When asked to choose between the tag that appears in the middle of the night on someone else’s property and the possibility that the tag might enjoy an embedded meaning, First Amendment jurisprudence does not wax philosophical about the values of equality or democracy or the utility of a free marketplace of ideas. Under criminal law, graffiti is regulated as a property offense or nuisance offense based on the damage it causes, with no consideration of the message it contains.
This Article argues that this rote calculation is wrong. While graffiti undoubtedly damages the property to which it is attached, to ignore the communicative component of graffiti is to ignore its role as a medium for the most marginalized of voices. From #MeToo to Black Lives Matter to youth in occupied territories to those that resist occupation, graffiti lays claim to a power and purpose that cannot be realized in other, more bounded speech forums. Accordingly, this Article proposes a speech-based affirmative defense to graffiti crimes. This defense would not be an automatic get-out-of-jail-free card. Rather, it would permit jurors to consider the expressive value of graffiti in their deliberations. It would allow the men and women who bear witness to the graffiti and the damage it may cause in their own communities to make the ultimate decision whether a criminal sanction is appropriate or whether it is speech worth saving.