LEGAL DEFIANCE:

GOVERNMENT-SANCTIONED GRAFFITI WALLS

AND THE FIRST AMENDMENT
The caricature face of Maine Governor Paul LePage, wearing a Ku Klux
Klan hood and surrounded by the words homophobe, moron, and racist
greeted every passerby of the Portland Water District (PWD) in Portland,
Maine on September 6, 2016.1 The image sparked a controversial exchange
between local government entities, a rarity since the City of Portland and
PWD agreed to provide the hundred-foot wall as a public graffiti site in
2001.2 City spokeswoman Jessica Grondin said the city “can’t do anything
because [the graffiti is] sanctioned and it’s a matter of free speech.”3 Mayor
Ethan Strimling apparently disagreed and asked PWD to paint over the
mural, as “equating the governor and his rhetoric [with the KKK] . . . is a
step too far.”4 Grondin said PWD would not comply with the Mayor’s
request, though PWD did not condone the message.5
Shortly after the mayor called for removal, an unknown party replaced
LePage’s hood with Mickey Mouse ears, momentarily assuaging Portland’s
free speech tension.6 But the vigilante Mickey artist merely postponed
confronting the issue, as some in Portland called for the PWD to end its
allowance for public art.7 This presents a familiar question in an unfamiliar
context: when the government, at any level, creates a space for artists to
paint graffiti without prior design approval, 8 how can––and should––the
government censor what is painted on those spaces?
This Note examines that question. Part I discusses a brief history of
graffiti and its proliferation in American culture. Part II highlights the issue
of government-sanctioned walls and addresses why there has been little, if
any, judicial discussion on government regulation of these spaces, despite
the prevalence of graffiti in American television, film, clothing, and other
industries. Part III hypothesizes as to which legal doctrines would be

1. Peter McGuire, Scathing LePage Mural Tests Portland’s Stance on Free Speech, PORTLAND
PRESS HERALD (Sept. 6, 2016), https://perma.cc/76NQ-C3K6.
2. Sarah Larimer, Mural Depicting Gov. Paul LePage in KKK Regalia Sparks Painting Fight
in Maine’s Biggest City, PORTLAND PRESS HERALD (Sept. 7, 2016), https://perma.cc/PC93-9BVS.
3. Id.
4. Id.
5. Id.
6. McGuire, supra note 1.
7. Ed Morin, Portland Water District to Continue Allowing Use of Graffiti Wall, BANGOR
DAILY NEWS (Mar. 30, 2017, 8:45 PM), https://perma.cc/CB3Y-WKZ8.
8. I will refer throughout this essay to these types of public art spaces as “government-
sanctioned walls,” “legal graffiti walls,” and “legal walls.” These all refer to walls that are publicly
owned and explicitly or impliedly (through lack of enforcement of anti-graffiti regulation) deemed free
for use by graffiti artists.

1479
1480 WASHINGTON UNIVERSITY LAW REVIEW [VOL. 95:1479

relevant to a First Amendment or other challenge to government regulation

of graffiti walls and argues that courts should consider a legal graffiti wall
to be a designated public forum, with all regulations subject to strict
scrutiny. Because there is little opportunity for artists themselves to
challenge government censorship of legal walls, the government must also
exercise self-restraint if it opts to provide these legal walls. Part IV outlines
the considerations a government must consider when creating and
maintaining a legal graffiti space to facilitate a more robust public discourse.

I. GRAFFITI AND EXPRESSION

Graffiti is a powerful means of expression, made of words, images, or a

combination of the two, in a place where it is neither expected nor
(generally) wanted.9 Graffiti lies at the cross-section of art, vandalism, and
political expression and enjoys prevalence in urban American culture. 10
This prevalence comes with a high price tag, however: American cities
collectively pay $12 billion per year to remove, cover and abate graffiti.11
Los Angeles alone spends $7 million annually.12
Both private and government actors employ legal graffiti walls to abate
this cost and provide alternative forums for speech.13 Graffiti walls meet
other objectives as well––young people can engage with and develop art

9. See discussion infra pp. 13–15; see also Cameron McAuliffe & Kurt Iveson, Art and Crime
(and Other Things Besides . . . ): Conceptualising Graffiti in the City, 5 GEOGRAPHY COMPASS 128, 140
(2011) (“Graffiti disrupts the aesthetic fabric of the urban environment, writing its own story across
spaces not intended to act as a communication medium – the walls and ceilings of the city, and trains
and trucks that travel through it.”).
10. Today, graffiti and its likeness proliferate most of American culture in the form of TV
commercials, clothing, movies, museums, and even subway cars in Disneyworld. See Marisa A. Gómez,
The Writing on Our Walls: Finding Solutions Through Distinguishing Graffiti Art from Graffiti
Vandalism, 26 U. MICH. J.L. REFORM 633, 641 (1993); N.Y. Wants Disney to Erase Stigma, CHI. TRIB.
(Nov. 24, 1989), https://perma.cc/PLK3-Q8E6; Sherwin-Williams Co. v. City & Cty. of S.F., 857 F.
Supp. 1355, 1359 (N.D. Cal. 1994) (describing “[h]ip-hop graffiti” as “part of the hip hop culture, which
also includes certain styles of music, dress and other components”); see also Sheldon A. Evans, Taking
Back the Streets? How Street Art Ordinances Constitute Government Takings, 25 FORDHAM INTELL.
PROP. MEDIA & ENT. L.J. 685, 691 (2015) (discussing how graffiti “brought art to the everyman” by its
public display).
11. See Graffiti Vandalism in Riverside, CITY OF RIVERSIDE, https://perma.cc/E4XR-CGL4.
12. Aaron Mendelson, LA Scrubs Away 30 Million Square Feet of Graffiti Each Year, S. CAL.
P UB. RADIO (Sept. 10, 2015), https://perma.cc/CB5X-HEZ2.
13. See, e.g., Rob White, Graffiti, Crime Prevention & Cultural Space, 12 CURRENT ISSUES
CRIM. J UST. 253, 263 (2001) (discussing efforts to “orient existing graffiti work toward pro-social, legal
community projects, and away from illegal, graffiti vandalism . . . by assisting young people in their
skill development, providing avenues for the undertaking of community projects, [and] increasing the
prospects of writers/artists receiving an income from involvement in commercial projects”). There is,
however, a litany of failed “legal wall” projects. See Randy Campbell, Graffiti “Free” or “Sanctioned”
Walls Vignettes from All Over, NOGRAF NETWORK, https://perma.cc/J2XS-STVG (citing several failed
attempts at opening legal graffiti wall forums, which resulted in increased tagging and vandalism around
the walls and writing that “[w]hat started as a nice project turned the area into a slum”).
2018] LEGAL DEFIANCE 1481

skills, legal walls can de-stigmatize an activity commonly seen as deviant,

and graffiti can beautify dilapidated communities.14 To date, there are legal
walls in several locations around the world, and many are in the United
States.15 Most legal walls in the United States are privately-owned, but at
least three are publicly-owned, government-sanctioned walls.16 Before
delving into the judicial doctrine governing these government-sanctioned
art spaces, this Note briefly inquires into the communicative value of graffiti
and the current view of graffiti in society.

A. Who is speaking?

There is no one homogenous group of graffiti artists––they range from

the world-renowned Banksy17 to local teenagers. Typical artists are young,
ethnic minorities, men, and those in a marginal and transitional status.18
Graffiti requires little economic investment and no requisite skill set,
making graffiti accessible to individuals of lower socio-economic status.19
And older, more experienced artists may continue to paint in the street or
work in studios, displaying and selling their work. 20

14. See generally Gómez, supra note 10; see also Madeleynn Green, A Beautiful Mess: The
Evolution of Political Graffiti in the Contemporary City, 8 CORNELL INT’L AFF. REV. 7, 16 (2014)
(arguing that the “commodification of street art and its ability to aid in the transformation of formerly
dilapidated spaces unearths a new, contemporary function for street art”); Terri Moreau & Derek H.
Alderman, Graffiti Hurts and the Eradication of Alternative Landscape Expression, 101 GEOGRAPHICAL
REV. 106, 118 (2011) (discussing graffiti as having “significant therapeutic potential as a mode of
response to trauma and issues of identity negotiation” and being a “natural outlet for marginalized groups
to express their internal sense of identity and injustice”) (internal quotation marks and citation omitted).
15. See, e.g., Find Legal Graffiti Walls Around the World, https://legal-walls.net/.
16. These walls include the PWD wall, discussed supra at 1–2; the Richard B. “Rico” Modica
Way in Cambridge, Massachusetts, see Modica Way, ATLAS OBSCURA, https://perma.cc/9E5S-RKVK;
and a wall in Venice, California, see VENICE ART WALLS, https://veniceartwalls.com.
17. Banksy is a well-known British graffiti artist. Most of his fans do not know his identity, but
he has attained world-wide fame by “bombing”—outlaw spraying—walls in America and Europe. Will
Ellsworth-Jones, The Story Behind Banksy, SMITHSONIAN MAG. (Feb. 2013), https://perma.cc/4736-LP
T2.
18. White, supra note 13, at 256 (“[Y]oung people between 15 and 17 often occupy a 'no man's
land' in which they are neither children, nor adult. They are marginal to the family and occupational
structures of society . . . . Marginal status can translate into assertions of presence. This can take the
form of graffiti . . . .”); see also Sherwin-Williams Co. v. City & County of San Francisco, 857 F. Supp.
1355, 1360 (N.D. Cal. 1994) ( “Hip hop graffiti writers are overwhelmingly male. They tend to be
teenagers, ranging in age from 12 to 20, although some writers begin earlier and some writers continue
through their 20s and even 30s. Writers come from all racial, ethnic and social backgrounds and are
highly mobile.”) (citations omitted).
19. White, supra note 13, at 257; see also Green, supra note 14, at 7 (“the advent of iconographic
street art [like graffiti] has opened new platforms for international youth to creatively express
sociopolitical discontent”).
20. See, e.g., Lois Stavsky, Street Art: Galleries and Alternative Spaces to See Exhibits in NYC,
TIMEO UT (Apr. 22, 2013), https://perma.cc/M9NF-TE5L.
1482 WASHINGTON UNIVERSITY LAW REVIEW [VOL. 95:1479

By the 1970s, graffiti had developed into a feature of the youth sub-
culture hip-hop movement.21 Today, graffiti in urban settings is just one part
of a larger graffiti culture. This associative culture may include rites of
passage and stylistic similarities, or competitive artistic feats.22 Rob White,
a professor in law and sociology at the University of Tasmania, writes that
artists paint for a number of reasons: they love it, it boosts their spiritual
well-being, they want to engage authentically with society around them, or
they feel a buzz by doing something seen as “deviant” and risky. 23 White
writes that painting is often a way of “providing excitement and action, a
sense of control and an element of risk.”24

B. Where?

Typically urban settings provide the backdrop for graffiti, but its
simplicity allows its creators to paint virtually anywhere. 25 Graffiti’s
location can be communicative; the impact of gallery-displayed graffiti, for
example, may not equal the impact of a mural under a heavily trafficked
bridge.26 This is because, first, different audiences frequent different
places—compare a girls’ bathroom and a public highway—and second, a
message can be place-specific, like an anti-war message on the walls of the
Pentagon.27

21. Gómez, supra note 10, at 642.

22. White, supra note 13, at 255; see also Sherwin-Williams, 857 F. Supp. at 1360 (identifying
“classes” and “crews” within the “social organization of the hip hop culture” and describing “crews” as
“groups of friends who write graffiti together and share materials and skills”).
23. White, supra note 13, at 257.
24. OFFICE OF COMMUNITY ORIENTED POLICING SERVICES, U.S. DEP’T OF JUSTICE, E11011354,
PROBLEM-ORIENTED GUIDES FOR POLICE SERIES (NO. 9)—GRAFFITI 7 (2002).
25. See Cameron McAuliffe, Legal Walls and Professional Paths: The Mobilities of Graffiti
Writers in Sydney, 50 URB. STUD. 518, 521 (2013) (“The ability to ‘strike anywhere’ constructs all
surfaces of the city as a potential canvas.”).
26. See Jonna McKone, Tagging Rights: Have the Nonprofits, Art Galleries, and Party
Planners Who Fete D.C.'s Graffiti Scene Also Tamed It?, WASH. CITY PAPER (Sept. 9, 2011),
https://perma.cc/K476-XQLY (She quotes Cory Stowers, a project organizer for MuralsDC,
discussed infra at 31–32, describing the effect of placement on the impact of graffiti: “When you
come up on a fresh piece of graffiti in a random cut space or even just walking down the street, the
impact that it has on you versus how you see it on a canvas or in an installation is greatly reduced.”);
see also Moreau & Alderman, supra note 14, at 110 (calling graffiti works “highly geographical
expressions”).
27. See Timothy Zick, Speech and Spatial Tactics, 84 TEX. L. REV. 581 (2006) (arguing that the
place where speech occurs is vital to the communicative message of that speech, and that government
spatial regulation impacts the effect of speech, especially political speech); see also White, supra note
13, at 255 (“The physical place of graffiti implies different types of audiences (e.g. girls only), and
different types of messages (e.g. emphasis on sexuality and social relationships).”). The government’s
exercise of power over the place of speech is a topic both Zick and White explore; White, for example,
argues that the “re-configuration of public spaces and public forums” for law and order purposes is
“premised upon social exclusion of designated people from public spaces.” Id. at 257. He also discusses
“‘coercive crime prevention’ measures” which exclude people and their ideas from certain public areas
in favor of social order, diminishing their expressive capacity. Id. at 261. See also Moreau & Alderman,
2018] LEGAL DEFIANCE 1483

C. What is the message?

Artists use their paint to communicate a range of messages. Some are

political, like the words “Black Lives Matter” and “No Justice No Peace”
recently sprayed on Trump International Hotel in Washington, D.C.,
reflecting inflamed racial tensions during the 2016 presidential election
cycle.28 Some are reactions to “real and perceived abuses of authority.” 29
Some touch on social movements or values, like the Washington, D.C.
metro-stop mural commemorating Sean Taylor, a murdered Washington
Redskins football player, which has remained since its creation in 2007. 30
Some graffiti is more practical, and is used to mark gang territory or
communicate using an “internal language” with other artists in graffiti
culture.31 Some use graffiti to make their presence known, to rise within
graffiti culture, and to connect with others.32 Some paint because painting
is something to do.33
Assertions often challenge majority ideologies and institutions. 34 Graffiti
artists may find themselves at the margins of social and political life.35 They
may paint to challenge the construction of social and commercial
institutions, which they view as a detriment to their success, rather than a
benefit.36 Some artists also contend that the illegality of painting graffiti
itself may serve an expressive function, that “risk is part of the form.”37 This

supra note 14, at 121 (arguing that “[p]unitive discourses that seek to marginalize certain social groups
and activities are increasing in cities throughout the United States, creating selective, naturalized ideas
about what public space should be used for, who is a legitimate member of the public, and how this
translates into exclusionary practices in public space,” and that anti-graffiti campaigns “play a critical
and often unquestioned role in not only vilifying graffitists but also justifying broader, exclusionary
ideas about political identity and what counts for citizenship”).
28. Leah Freeman & Eric Bradner, Trump’s DC Hotel Vandalized with ‘Black Lives Matter’
Graffiti, CNN (Oct. 2, 2016, 2:31 PM), https://perma.cc/2Y4F-LRQX.
29. White, supra note 13, at 256; see also Moreau & Alderman, supra note 14, at 110 (“Graffiti
can be seen as highly geographical expressions of dissatisfaction with dominant and domineering
authorities and ideologies.”).
30. Dante Evans, Sean Taylor: More than Just a Mural, P ULSEFEEDZ (Apr. 6, 2015), https://
perma.cc/7DVE-FHAQ.
31. CEDAR LEWISOHN, STREET ART: THE GRAFFITI REVOLUTION 15 (2008) (“Graffiti isn’t so
much about connecting with the masses, it’s about connecting with different crews, it’s an internal
language, it’s a secret language.”).
32. White, supra note 13, at 256.
33. Id. at 257 (“Some people do graffiti without really thinking about why they are doing it,
except that it was the thing to do at the time.”).
34. Id. at 256.
35. Id.
36. Id. See also Joe Hermer & Alan Hunt, Official Graffiti of the Everyday, 30 LAW & SOC'Y
REV. 455, 464 (1996) (claiming that artists are often marginal groups “denied legitimate outlets” who
“use graffiti to express the nightmarish existence of street life that often includes overt violence and
prostitution”).
37. McKone, supra note 26; see also Evans, supra note 10, at 692 (“For some, the illegality
of their craft is part of its allure and plays into their social commentary.”) (citing Alfredo Aleman,
1484 WASHINGTON UNIVERSITY LAW REVIEW [VOL. 95:1479

illegality may be rewarded in subcultures that afford prominence to more

daring graffiti feats and may also serve the expressive purpose of defiance
against what artists see as oppressive––or, at least, unsympathetic––
regimes.38

D. How are they seen?

Graffiti is largely outlawed by city ordinances, and courts have generally

upheld these regulations. 39 The Supreme Court protected the government’s
right to promote aesthetic values in Members of City Council of Los Angeles
v. Taxpayers for Vincent,40 a case that has since justified laws restricting
graffiti paint sales, chalking, signage, and locations where homeless
individuals may seek alms. 41 Graffiti may be considered ugly and disruptive
to the clean appearance that city companies and engineers work hard to
cultivate.42 Graffiti also hits the pocketbook of American citizens.43 When
painters create graffiti on a public space, the collective community covers
the clean-up cost. If they use private space, they trespass in wanton
disregard for the property owner’s rights of exclusion. Not surprisingly,
many disfavor graffiti for these reasons.44

Graffiti Artists Look Toward Los Angeles River for a Canvas, EGP (Aug. 13, 2009), https://perma.
cc/A7TM-79G3).
38. McAuliffe & Iveson, supra note 9, at 131.
39. For example, New York City’s prohibition of any “inscription, figure or mark of any type on
any public or private building” without “express permission” describes graffiti as a Class A
misdemeanor and imposes both fines and potential jail time. N.Y.C., N.Y., CODE § 10-117 (2003); see
also Sherwin-Williams Co. v. City & County of San Francisco, 857 F. Supp. 1355, 1369 (N.D. Cal.
1994) (upholding anti-graffiti lock-up law requiring spray paint to be kept in store areas accessible only
by employees, despite paint manufacturer’s protests of reduced sales). For a further discussion on the
public nuisance law and graffiti abatement regulation, see Evans, supra note 10, at 738–45, arguing that
property owners whose property is painted with value-enhancing graffiti work should receive heightened
scrutiny when bringing actions to enjoin the enforcement of anti-graffiti regulations, consistent with the
principles that underlie the constitutional takings clause.
40. 466 U.S. 789, 805 (1984).
41. See, e.g., Johnson v. City & Cty. of Philadelphia, 665 F.3d 486, 492–93 (3d Cir. 2011)
(upholding Philadelphia’s law prohibiting the posting of signs on utility poles, streetlights, sign posts,
and trees in a public right-of-way, as the law was “narrowly tailored to serve the government's interests
in safety and aesthetics”); Chad v. City of Fort Lauderdale, 861 F. Supp. 1057, 1062 (S.D. Fla. 1994)
(upholding an anti-begging statute on a beach, which it determined to be a non-public forum, or
alternatively, if the beach was a public forum, finding the restrictions on the time, manner, and place to
be reasonable in light of the government interest in aesthetics, among other reasons).
42. See, e.g., White, supra note 13, at 258 (noting that many perceive graffiti as “unsightly art or
slogans or tags on public walls, trains and buses”).
43. See supra notes 11–12 and accompanying text.
44. Graffiti on private property may constitute trespass, Ronald Kramer, Painting with
Permission, Legal Graffiti in New York City, 11 ETHNOGRAPHY, 235, 237 (2010), and may be costly to
remove. Graffiti Vandalism in Riverside, CITY OF RIVERSIDE, https://perma.cc/E4XR-CGL4. McAuliffe
and Iveson also mention another view of graffiti in publicly owned spaces—a view which considers
graffiti a “selfish, individualistic and ‘private’ appropriation of the public realm.” McAuliffe & Iveson,
supra note 9, at 133.
2018] LEGAL DEFIANCE 1485

But graffiti often inspires a distaste that goes beyond the aesthetic
ugliness and cleanup costs. Graffiti signifies a lack of control, and one
graffiti piece can invite more, which in turn snowballs into small-scale
criminal activity. 45 The Broken Windows Theory captures this idea. It
alleges that small manifestations of crime or desertion can lead to, or invite,
more violent crime. 46 In addition, graffiti can symbolize anarchist beliefs or,
more moderately, a threat to existing institutions.47 Graffiti is a direct
defiance of authority, one that challenges conceptions of the city as wealthy
or “clean.” 48 Moreover, visibly unruly graffiti may be uncomfortable to
see.49 It is a reminder of the presence of those who live a different life from
other, more affluent residents. 50
“Graffiti artists” is thus a broad category of people: the term “graffiti”
covers many images and words. White, for example, splits graffiti into
categories of political, protest, art, tagger, gang, and toilet graffiti. 51 While
a legal graffiti wall will not appeal to all artists, any restriction—
regulations, paint removal, et cetera—should apply equally to all artists,
regardless of their motivation for painting. For that reason, I intentionally
do not limit my discussion to any particular artist or message,52 as the
government would not be able to allow some graffiti and exclude others

45. The Broken Windows Theory (BWT) was created by James Wilson and George Kelling in
their article Broken Windows. George Kelling & James Wilson, Broken Windows: The Police and
Neighborhood Safety, THE ATLANTIC (Mar. 1982), https://perma.cc/NB8M-R2QP. McAuliffe and
Iveson cite several reasons, some of which are described by the BWT, to explain why graffiti is
considered criminal and dangerous. McAuliffe & Iveson, supra note 9, at 130–31. Derek Alderman and
Terri Moreau also write about the notion of cleanliness and order in their 2011 article Graffiti Hurts and
The Eradication of Alternative Landscape Expression. Moreau & Alderman, supra note 14. I draw from
these works throughout my analysis. However, see Elizabeth G. Gee, City Walls Can Speak: The Street
Art Movement and Graffiti's Place in First Amendment Jurisprudence, 20 JEFFREY S. MOORAD SPORTS
L.J. 209, 216–27 (2013), noting that recent studies have questioned the BWT’s validity.
46. McAuliffe & Iveson, supra note 9, at 130–31.
47. White, supra note 13, at 258 (“Related to this idea [of the BWT] is the feeling on the part of
some that the anti-authoritarianism represented in graffiti is a threat to those in control (i.e. institutional
authorities and political leaders), and thereby a threat to 'ordinary' law-abiding citizens.”). Beyond the
scope of this Note lies a fertile discussion of the overall societal meaning of graffiti and anti-graffiti
regulation.
48. Moreau & Alderman, supra note 14, at 114–16.
49. Id. at 116 (“If the landscape looks and feels clean, safe, and cared for, it will not invite persons
and activities that the majority does not want, such as graffiti or homeless persons.”).
50. White, supra note 13, at 258.
51. Id. at 254–55.
52. As a note, one student author conceptualized the act of painting graffiti itself as
communicative conduct: “If . . . a tagger comes before the court, argues that his act of creating graffiti
is a statement of his political beliefs, and provides evidence that he only defaces phone booths because
he wants to symbolize his opposition to government wiretapping, the court must determine whether the
conduct is protected.” Kelly P. Welch, Note, Graffiti and the Constitution: A First Amendment Analysis
of the Los Angeles Tagging Crew Injunction, 85 S. CAL. L. REV. 205, 217 (2011). The Court would then
turn to United States v. O’Brien, 391 U.S. 367 (1968) (establishing a test to determine the validity of
government regulation of symbolic speech), for guidance. My discussion of legal walls forecloses the
defiance-act argument, however, so I do not discuss it.
1486 WASHINGTON UNIVERSITY LAW REVIEW [VOL. 95:1479

(unless, for example, graffiti that includes fighting words which incite
violence, briefly discussed below).53 The government could not distinguish
“graffiti art,” or art with pop culture influences and cultural aesthetic, from
“graffiti vandalism,” which encompasses gang graffiti and most tagging,
and neither do I. 54 While my policy arguments focus largely on graffiti as
political expressive speech, I do recognize that many works on a legal wall
will not be political in nature—or even “artistic”—and should still merit
protection.

E. The Problem

Thus, the problem, encapsulated by the incident in Portland, Maine, 55 is

how and whether the government can censor legal graffiti walls. This issue
applies to government at all levels, including those on college campuses,
who face similar censorship issues. Ohio University allows student graffiti
artists free reign over a cement block near campus. 56 The University touts
the wall as a “unique part of the OU culture,” but it struggled with its
commitment to free expression on the wall in the wake of national racial
tension.57 A painting of “Black Lives Matter” was covered with the message
that “All Lives Matter.”58 A message supporting President Trump’s
candidacy––including the words “Build the Wall”––was covered by a
Hispanic-Latino student group, writing the message “Build bridges, not
walls.”59 More recently, unknown painters created a hung figure and the

53. See infra p. 37–38.

54. See Gómez, supra note 10, at 635, for this distinction between “graffiti art” and “graffiti
vandalism.” This distinction is generally based on the motivation of the artist. See Mary Carole
McCauley, Making Their Mark on Graffiti Alley, BALT. S UN (Dec. 27, 2009), https://perma.cc/3VQY-
NJQ7. I do not discuss different graffiti mediums, but refer generally to graffiti art created by paint or
markers. Similarly, I restrict my topic to specifically graffiti and not street art, which is a broader term
encompassing “artwork done using paint, graffiti, markers, stencils, stickers, tiles, adhesive, or other
writing methods, all without the prior permission of the property owner.” Evans, supra note 10, at 690.
Lastly, I do not distinguish among types of graffiti, like “pieces” or larger complex, intricate works;
“tags” or one-color signatures or phrases; and “throwups” or “throwies,” which are tags with bubble
letters. See Matt Randal, 10 Graffiti Terms to Remember, WIDEWALLS (Oct. 16, 2014), https://perma.cc/
AW5X-M6VD.
55. See discussion supra pp. 1–2.
56. Melody Sands, Graffiti Wall Offers Avenue for Expression, OHIO TODAY (Spring 2001),
https://perma.cc/P35Y-95XJ.
57. Id. (quoting John Kotowski, Assistant Vice President for Facilities Planning); Conor Morris,
OU President Issues Statement About Trump ‘Wall’ Graffiti, ATHENS NEWS (Apr. 10, 2016), https://
perma.cc/NL33-7NMP.
58. Morris, supra note 57 (“[University President Roderick] McDavis was responding to a
‘Black Lives Matter’ message painted by the OU Black Student Union being painted over with an ‘All
Lives Matter’ message, along with profanity-laden language calling the painters, among other things,
‘neo-progressive f**ks.’”).
59. Id. As a note, the “Build a Wall” message has gained particular notoriety for sparking
controversy on college campuses, highlighting this same issue of censorship. The Cornell College
(Mount Vernon, Iowa) administration sent a message to its community in the wake of the message
2018] LEGAL DEFIANCE 1487

words “Build the Wall,” which the Student Senate subsequently covered
after OU’s strategic director for diversity and inclusion saw the graffiti. 60
The University responded to its campus community after each of the
aforementioned graffiti works were painted,61 but some disagreed over
whether any response was merited––a commenter on The Post’s online
story asked, “so this was a graffiti wall and the problem is people put graffiti
on it? . . . I'm confused.”62 This administration and student response
highlights the precise issue of government regulation of sanctioned graffiti
spaces (should the Student Senate have painted over the image of a person
being hanged?), and as more campuses create spaces for graffiti art, the
issue of university censorship will only grow more poignant.

II. THE LACK OF LEGAL CHALLENGE

But why has no one challenged censorship of legal graffiti walls? Several
reasons, many of which are normative, may explain. First, the situation in
Portland, Maine, may be the first real prospect of a case involving
government censorship of legal walls. 63 Programs where the government
conditions use of the graffiti wall on pre-approval, like the MuralsDC
program discussed below, do not face the censorship issue.64 Private actors
who provide forums for expressive graffiti in urban areas are similarly not
subject to First Amendment restraints.65

appearing on its kiosks, which are designated graffiti spaces for students. Letter from John W. Harp,
Vice President for Student Affairs & Schvalla R. Rivera, Assistant Dean of Students, to Cornell College
Campus Community Members (Apr. 11, 2016), https://perma.cc/VHF3-2GW9. The kiosks were quickly
covered. Id. At the University of Minnesota, student groups are given designated spots to paint messages
on the Washington Avenue Bridge on campus. The College Republicans painted the “Build The Wall”
message, which another student group covered with the words “Stop White Supremacy.” University
President Eric Kaler denounced the covering, saying “People in our community may disagree with the
sentiment expressed. However, while the University values free speech, the subsequent vandalism of the
panel is not the way to advance a conversation.” College Republicans Paint Controversial Mural on U
of M Bridge, CBS MINNESOTA (Oct. 1, 2016), https://perma.cc/6BSH-KA55.
60. Dina Berliner et. al., Images Depicting a Hanged Figure, 'Build the Wall' Appear on Graffiti
Wall at Ohio University, POST ATHENS (Sept. 20, 2016, 9:10 PM), https://perma.cc/PTY5-BMBZ.
61. See Morris, supra note 57 (response by University President to campus); Berliner, supra note
60 (response by OU spokeswoman).
62. Chris Harmon, Comment to Dina Berliner et. al., Images Depicting a Hanged Figure, 'Build
the Wall' Appear on Graffiti Wall at Ohio University, POST ATHENS (Sept. 20, 2016, 9:10 PM), https://
perma.cc/PTY5-BMBZ.
63. I have been unable to find any legal challenges to censorship of legal graffiti walls, or any
other related news stories of First Amendment concerns with legal walls. I hypothesize that this issue is
not yet ripe, though perhaps it will never ripen.
64. See discussion infra p. 31.
65. Several private landowners offer their personal property as a canvas for graffiti artists. I n
New York, for example, most “legal” graffiti is produced on private property—business walls, factories,
vans—where artists sought and obtained permission from the owners. See Eric Felisbret, Legal Venues
Celebrate Graffiti as an Art Form, N.Y. TIMES (July 16, 2014, 5:50 PM), https://perma.cc/9W6M-R3PZ.
There are dozens of other local community programs––a property owner collaborated with the city’s
1488 WASHINGTON UNIVERSITY LAW REVIEW [VOL. 95:1479

Second, artists retain little interest in their work. Legal walls are fluid
and change quickly. 66 If someone dislikes a piece, they have the power to
change it, like the Mickey painter in Portland.67 Artists do not violate the
law when painting on legal walls, thus eliminating the “unclean hands”
concern that pervades arguments against graffiti protection.68 But the
legality element that could possibly allow for graffiti’s protection––a legal
space––also detracts from the legal interest an artist would have in their
work, as anyone can paint over it. Think of graffiti on legal walls as spoken
words on busy street corners: no cause of action exists for one whose
publicly spoken message is “covered” by the shouting campaigner right next
to him.69
Third, most legal graffiti walls seem to be graffiti hijackings rather than
intentionally-created forums, and thus are located in lightly-trafficked areas
and not busy city centers.70 Some cities give up enforcing anti-graffiti
regulations, as areas are too difficult to monitor or too costly to clean. And,
if graffiti content meriting removal is not in the public’s eye, censorship of
these walls is not an issue.
The artist, in addition to the wall, may not be visible. Graffiti is or can
be faceless.71 To challenge an act of government censorship, an artist would

legal department to ensure compliance with a graffiti ordinance in Asheville, North Carolina. See
Foundation Walls Project Provides Space to Asheville’s Street Muralists, ASHEVILLE CITY SOURCE
(Feb. 18, 2016), https://perma.cc/GA2C-883J. The HOPE Outdoor Gallery is a well-known privately-
owned art space in Austin, Texas. John Paul Titlow, Please Deface This Park’s Walls, FAST CO. DESIGN
(Nov. 4, 2014), https://perma.cc/AK6E-V3YR. However, private walls are subject to the whims of their
owners; free speech protections do not extend onto private property.
66. See, e.g., A Walk Through Modica Way, Graffiti Alley in Cambridge 05/07/2016, SEEN
AROUND BOSTON (May 9, 2016), http://seenaroundboston.com/a-walk-through-modica-way-graffiti-
alley-in-cambridge-05072016/.
67. Contrast public art displays, which cannot be painted over by individuals taking issue with
the work.
68. “Unclean hands” is a legal defense asserted against unethical plaintiffs. If a graffiti artist
painted illegally and sought to protect their work under copyright law, for example, a defendant could
assert “that the unethical conduct was the creation of the graffiti” and thus prevent the graffiti artist from
seeking to enforce “her rights in her work against a defendant who has exploited the work without
permission.” John Eric Seay, You Look Complicated Today: Representing an Illegal Graffiti Artist in a
Copyright Infringement Case Against a Major International Retailer, 21 J. INTELL. PROP. L. 1, 7 (2012).
If the artist did not paint illegally, however, no such defense exists.
69. I credit my good friend Madison Acree with this analogy.
70. See, e.g., McGuire, supra note 1 (“More than a decade ago, the district and Portland police,
tired of consistently painting over graffiti sprayed on the wall, turned it into a public canvas for street
art, said [Michelle] Clements, the district spokeswoman.”).
71. Many graffiti artists paint their monikers on their works but are otherwise unidentifiable.
Banksy, for example, is a prominent artist that chooses to remain anonymous. Dan Karmel, Off the Wall:
Abandonment and the First Sale Doctrine, 45 COLUM.J.L. & SOC. PROBS. 353, 354 n.4 (2012).
Anonymity is a protected aspect of the Freedom of Speech.
Despite readers' curiosity and the public's interest in identifying the creator of a work of art, an
author generally is free to decide whether or not to disclose her true identity. The decision in
favor of anonymity may be motivated by fear of economic or official retaliation, by concern
2018] LEGAL DEFIANCE 1489

need to file suit and claim ownership of the removed graffiti work. It seems
unlikely that an artist would come forward, especially if their painting was
removed for obscenity or defamation purposes. The artist also knew that a
private party could cover their work at any time, making any improper
censorship argument conceptually difficult. Further, minorities or youths in
a transitional status most often paint graffiti.72 Access to the judicial
system––even to a lawyer––may be out of the question. That is, of course,
if the painter even considers a First Amendment challenge to government
censorship––and if the artist paints to challenge American institutions, why
would they use the institution of the law to protect their work?73
In the larger graffiti community, many graffiti artists simply will not use
a legal wall.74 These artists are opposed to the very spirit and idea of legal
walls. One author writes “many graffiti writers embrace illegality as an
implicit part of graffiti practice;” 75 another posits that, for many, “illegality
is precisely the point.” 76
These considerations hold true for university graffiti. While a student
group may freely challenge censorship of their painted statement “Build a
Wall,” these students or groups may not want to publicly associate with the
idea. There are many situations in which a student would not challenge
student government or college administration censorship of graffiti painted
in sanctioned spaces. 77
While this Note does not argue that no one will ever challenge
government censorship of legal graffiti walls, it seems unlikely that the
LePage critic would have filed a claim in defense of his hooded masterpiece.
This unwillingness to come forward could create a potential for government
abuse of legal graffiti walls, where the government could cover any

about social ostracism, or merely by a desire to preserve as much of one's privacy as possible.
Whatever the motivation may be, at least in the field of literary endeavor, the interest in having
anonymous works enter the marketplace of ideas unquestionably outweighs any public interest
in requiring disclosure as a condition of entry. Accordingly, an author's decision to remain
anonymous, like other decisions concerning omissions or additions to the content of a
publication, is an aspect of the freedom of speech protected by the First Amendment.
McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 341–42 (1995).
72. See White, supra note 13, at 256.
73. This idea goes one logical step beyond White’s statement that artists challenge existing
institutions. See id. at 258.
74. See generally Kramer, supra note 44, at 242–50 (discussing the values and characteristics of
graffiti artists that do graffiti art legally). Kramer quotes at length graffiti artists who desire to use graffiti
to give back to their communities; while this paragraph notes that many artists will not use a legal graffiti
space, many other artists will.
75. McAuliffe & Iveson, supra note 9, at 137. The authors also cite another graffiti artist who
argued “that graffiti art’s key contribution as art is fundamentally related to its illegal placement in the
public spaces of the city.” Id. at 133 (original emphasis).
76. White, supra note 13, at 259.
77. Whether the university should protect ideas that the speaker is afraid to associate with is a
different issue.
1490 WASHINGTON UNIVERSITY LAW REVIEW [VOL. 95:1479

unwanted work knowing a challenge from the artist was unlikely. This Note
will discuss this potential for abuse in Part IV, but first, it examines how a
court should view challenges to censorship of legal walls if a challenge
occurs. In addition, this categorization should inform the local and student
governments’ decisions in creating and maintaining these legal spaces.

III. A JUDICIAL FRAMEWORK FOR LEGAL W ALLS

Some graffiti artists have brought copyright claims in defense of their

work,78 and one author discusses possible takings claims for private
property owners who do not wish to have unauthorized graffiti removed. 79
However, a challenge to legal wall censorship would most likely fall under
First Amendment jurisprudence and the constitutional right to free speech.

A. The First Amendment and Freedom of Speech

The First Amendment proscribes any law which impermissibly infringes

on the freedom of speech. 80 In addition to protecting actual spoken words,
the Free Speech Clause extends to mediums for expressive content, such as
paintings, song lyrics, parades—and graffiti.81 This protection could be
conceptualized in two ways: protection afforded to graffiti as art, which
may be considered expressive speech under the First Amendment, or
protection afforded to graffiti as speech itself.82 This could depend on the
nature of the work—a mural versus a phrase—and perhaps the stylistic
preferences of the judge, but such a classification should not change the
protection the work merits. 83

78. See, e.g., Williams v. Cavalli, No. CV 14-06659-AB (JEMx), 2015 WL 1247065, at *1 (C.D.
Cal. Feb. 12, 2015) (finding that graffiti artists stated a claim for copyright infringement, removal and
alteration of copyright information, unfair competition, and negligence when a clothing line used digital
images to reproduce the artists’ San Francisco mural on some clothing items); see also Al Roundtree,
Note, Graffiti Artists "Get Up" in Intellectual Property's Negative Space, 31 CARDOZO ARTS & ENT.
L.J. 959 (2013) (discussing the proper place for graffiti in Intellectual Property jurisprudence).
79. Evans, supra note 10, at 740.
80. U.S. CONST. amend. I.
81. See, e.g., Texas v. Johnson, 491 U.S. 397, 406 (1989) (protecting the act of burning a flag to
protest government policies as expressive content under the First Amendment); Hurley v. Irish-Am.
Gay, Lesbian and Bisexual Grp. of Boston, 515 U.S. 557, 569 (1995) (declaring a parade to be a form
of expression, and citing other examples of “the painting of Jackson Pollock, music of Arnold
Schöenberg, or Jabberwocky verse of Lewis Carroll” as “unquestionably shielded” by the First
Amendment); see also David Leichtman & Avani Bhatt, Federal Courts and the Communicative Value
of Visual Art: Is an Intended Message Required for Strong Protection of Rights Under the First
Amendment?, 58 FED. LAW. 25 (2011).
82. See Gee, supra note 45, at 218 (“Free speech jurisprudence lacks a firm stance on whether
art and forms of artistic expression constitute ‘speech’ and therefore deserve protection. Many legal
scholars and courts tend to agree, however, that art that conveys or communicates a message is clearly
protected expression under the First Amendment.”).
83. Id.
2018] LEGAL DEFIANCE 1491

Graffiti can also be political in nature, like the LePage mural in

Portland.84 This can add an additional layer of scrutiny, as courts have
historically granted heightened protection to political speech. 85

B. Public Art and Graffiti

The Supreme Court has granted high protection for “genuinely serious
literary, artistic, political, or scientific expression”86 but has never formally
defined the term “art” or offered “art” blanket protection.87 Courts do,
however, generally agree that the First Amendment grants protection for art
intended to convey a message.88 In addition, the Supreme Court has upheld
the ability of local and federal governments to permit and even encourage
the public display of art, allowing the government to play a gatekeeper role
in determining which art is displayed. 89
Circuit courts have addressed the protection afforded to art more
precisely, with the Second Circuit adopting a notably broad protection of
visual art in 1996 when striking down New York’s ban on public sales of
street art.90 The court found that the very sale of art communicated the
message that the artists were young and struggling in the world. 91 In
agreeing that art should be available to all and not just the wealthy, the court
remarked that “[v]isual artwork is as much an embodiment of the artist's
expression as is a written text.” 92 This ruling was later tempered by another
Second Circuit decision that used a “dominant purpose” test: if the dominant
purpose of the work was to communicate a message, the piece merited First
Amendment protection. 93 The Ninth Circuit has granted protection based on
the communicative value of the “art.”94 The Fifth Circuit’s approach has

84. An example of a political piece of graffiti is the LePage mural on the PWD, discussed supra
pp. 1. See also discussion supra pp. 9–11.
85. There is a general principle in constitutional law that political speech is “at the core of . . .
First Amendment freedoms” and thus merits heightened protection. See Williams v. Rhodes, 393 U.S.
23, 32 (1968). I do not expound on this additional protection because my discussion is not limited to
political graffiti.
86. Miller v. California, 413 U.S. 15, 23 (1973).
87. Gee, supra note 45, at 218.
88. Id.
89. See Nat’l Endowment for the Arts v. Finley, 524 U.S. 569 (1998) (upholding the NEA’s right
to determine which public art projects to fund with public money).
90. Bery v. City of New York, 97 F.3d 689, 695 (2d Cir. 1996).
91. Id. at 696.
92. Id. at 695.
93. Mastrovincenzo v. City of New York, 435 F.3d 78 (2d Cir. 2006) (using a four-factor test to
determine whether a non-traditional expressive medium (clothing) was predominantly expressive and
therefore under the ambit of the First Amendment).
94. See Leichtman & Bhatt, supra note 81, at 28–29 (discussing White v. City of Sparks, 500
F.3d 953 (9th Cir. 2007), wherein the Ninth Circuit affirmed the district court’s finding that an artists’
paintings which he sold in public places were entitled to First Amendment protection because he
intended to convey a message through his works).
1492 WASHINGTON UNIVERSITY LAW REVIEW [VOL. 95:1479

been notably less enthusiastic about providing First Amendment protection

to art, protecting only “great works of art” and distinguishing between “fine
art” and “decorative arts.”95
Judicial discussion has been more limited regarding graffiti specifically.
Some legal decisions have considered the intersection of graffiti and free
speech. In Ecko.Complex LLC v. Bloomberg, the city of New York denied
an urban clothing company a permit to hold a festival, as a graffiti
demonstration planned for the festival threatened to incite artists to paint on
subway cars.96 The district court held the permit denial to be an
impermissible infringement on Ecko’s First Amendment rights. 97 The
Second Circuit similarly affirmed a lower court’s preliminary injunction
against New York from enforcing its ban on spray paint sales in the case
Vincenty v. Bloomberg.98 The court noted that intermediate scrutiny was the
appropriate test, as the content-neutral ban placed only an incidental burden
on speech.99 The court deferred to the district court’s determination that the
ban failed intermediate scrutiny because it did not leave open ample
alternatives of communication, as painters with purely innocent purposes
could not possess painting materials.100
Other courts have discussed other oft-used defacement mediums, like
chalk, and the treatment given these other mediums can be extrapolated to
apply to graffiti. For example, a district court in Nevada found a local police
department impermissibly infringed on free speech rights when selectively
enforcing graffiti regulations against chalkers who were critical of the
department.101 The court may have found the same First Amendment
violations if the police enforced anti-graffiti regulations against only graffiti
works critical of the government.102
The formal legalization of graffiti gained popularity in the mid-80s, and
today there are several government projects that incorporate graffiti.103 As
noted above, there are graffiti-sanctioned walls around the world, many
privately owned, and at least three government-sanctioned walls in the

95. Id. at 29–30 (discussing Kleinman v. City of San Marcos, 597 F.3d 323 (5th Cir. 2010)).
96. Ecko.Complex LLC v. Bloomberg, 382 F. Supp. 2d 627 (S.D.N.Y. 2005).
97. Id. at 629.
98. Vincenty v. Bloomberg, 476 F.3d 74 (2d Cir. 2007).
99. Id. at 84.
100. Id. at 88.
101. Ballentine v. Las Vegas Metro. Police Dep't, No. 2:14-CV-01584-APG-GWF, 2015 WL
2164145, at *4 (D. Nev. Apr. 27, 2015).
102. This fairly normative conclusion is based on the regulation at issue: in Ballentine, the
regulation at issue was an anti-graffiti ordinance. Id. at *1. If selectively enforcing the regulation on
chalkers was impermissible, there is no reason to believe the regulation could be selectively enforced
(based on content) against graffiti artists.
103. See Jay Beswick, The Concept of Sanctioned Walls Has Occurred in Over 100 US Cities in
the Last Decade, NOGRAF NETWORK, https://perma.cc/J2XS-STVG (evaluating programs that have
been in place since 1985). An example of a project is MuralsDC, discussed infra pp. 31–32.
2018] LEGAL DEFIANCE 1493

United States.104 Before proscribing the judiciary’s treatment of legal

graffiti walls, this Note sifts through public forum doctrine and other
relevant First Amendment doctrines.

C. The Public Forum

The Supreme Court uses a “forum-based” approach to determine the

propriety of government restrictions on the use of public property. 105 Forum
analyses are twofold: first, the Court determines the classification of forum
and then evaluates any restriction in light of that forum. 106 The Court has
historically noted three categories of fora: the traditional public forum, the
designated public forum, and the non-public forum.107
The least protected area is the non-public forum.108 The government may
restrict the time, manner, and place of free speech in these limited public
spaces and is free to reserve the forum for communicative purposes. 109 Any
restrictions must be reasonable and not merely attempts to suppress certain
views or expressions. 110 For example, in 1998 the Supreme Court found that
a television broadcast of a debate was a non-public forum and upheld the
broadcasting company’s exclusion of a particular candidate because he
lacked popular support. 111 The Court found such a restriction was not based
on the candidate’s viewpoint, and was reasonable, as allowing every
Congressional candidate a spot at each debate would effectively “dampen
the vigor” of the debate. 112
MuralsDC provides a non-public forum example in the graffiti
context.113 The idea of Washington, D.C. Council Member Jim Graham,
MuralsDC funds murals by community artists in designated sites throughout
the city.114 Selected artists are required to employ youth between ages
fourteen and eighteen and teach them skills “in the discipline of graffiti style

104. See supra note 15.

105. Cornelius v. NAACP Legal Def. & Ed. Fund, Inc., 473 U.S. 788, 800 (1985).
106. Cornelius, 473 U.S. at 800; see also Daniel Mach, Note, The Bold and the Beautiful: Art,
Public Spaces, and the First Amendment, 72 N.Y.U. L. REV. 383, 401 (1997).
107. Cornelius, 473 U.S. at 802.
108. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46 (1983) (“Public
property which is not by tradition or designation a forum for public communication is governed by
different standards. We have recognized that the ‘First Amendment does not guarantee access to property
simply because it is owned or controlled by the government.’”) (citations omitted).
109. Id.
110. Id.
111. Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 681, 683 (1998) (citing Turner
Broad. Sys., Inc. v. FCC, 512 U.S. 622, 656 (1994)).
112. Id. at 681–83.
113. See MuralsDC, D.C. COMM’N ON THE ARTS & H UMANITIES [hereinafter MuralsDC],
https://perma.cc/D9F8-9REQ.
114. See id.; see also McKone, supra note 26.
1494 WASHINGTON UNIVERSITY LAW REVIEW [VOL. 95:1479

sketch work and aerosol mural painting.” 115 Program advocates hope
MuralsDC will abate graffiti in the Washington area.116 The program is
government funded and government run—and government censored. 117
Program officials must approve artists’ murals before the painting begins. 118
This government pre-approval is absent in the context of legal graffiti walls,
as such walls are simply open spaces where artists need not have their
designs approved. Legalized graffiti walls are thus unlikely to be considered
non-public fora.119
The traditional public forum sits opposite the non-public forum on the
Court’s First Amendment spectrum. 120 This traditionally available space
includes streets, parks, and other places where members of the community
historically assembled and voiced their opinions. 121 Any time, place, and
manner restrictions must be content-neutral and narrowly tailored to serve
a compelling government interest. Such restrictions must also leave open
ample alternative channels of communication. 122
The final forum category is the designated public forum, where the state
opens property for expressive activity. 123 The state must intend to open this
forum and has broad discretion when defining its contours. 124 Justice

115. Call for Graffiti and Aerosol Mural Artists, D.C. COMM’N ON THE ARTS & HUMANITIES
(Mar. 4, 2016) [hereinafter Calls for Grafiti], https://perma.cc/VX4P-BEYJ.
116. MuralsDC, supra note 113.
117. Call for Graffiti, supra note 115, at 1–3.
118. Id. at 6.
119. In other words, the government takes a step beyond mere possession of property when it
creates legal graffiti spaces. I do not analyze the forum categorization of public spaces painted by those
with pre-approved designs in programs like MuralsDC, but instead note that the legal walls I discuss do
not require pre-approval and are instead created by affirmative government action, either by failing to
remove graffiti or by sanctioning the space for graffiti. This action would take legal walls outside non-
public forum consideration. I also wish to note that I do not discuss the Government Speech Doctrine in
this essay, though an (albeit attenuated) argument could be made that programs like MuralsDC are
government speech given the government control over the message. See, e.g., Walker v. Tex. Div., Sons
of Confederate Veterans, Inc., 135 S. Ct. 2239, 2245 (2015) (upholding Texas’ right to refuse making
specialty license plates bearing the Confederate flag, as the license plates are a form of government
speech); Pleasant Grove City v. Summum, 555 U.S. 460, 472, 481 (2009) (upholding a municipality’s
refusal to place a monument from a minor religion in a public park, as the monuments were forms of
government speech).
120. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983) (discussing
forum analysis as a spectrum: “At one end of the spectrum are streets and parks which ‘have
immemorially been held in trust for the use of the public, and, time out of mind, have been used for
purposes of assembly, communicating thoughts between citizens, and discussing public questions.’”)
(citing Hague v. CIO, 307 U.S. 496, 515 (1939)).
121. This traditional public forum is where, “by long tradition or by government fiat,” the space
has been “devoted to assembly and debate.” Perry, 460 U.S. at 45.
122. Id.
123. Id.
124. This government intent is vital. The Supreme Court in United States v. Kokinda, found the
sidewalk outside a post office to be a non-public forum, despite allowances of citizens to distribute
leaflets, speak and picket at the site. 497 U.S. 720, 732 (1990). The plaintiffs, distributing campaign
literature for the Democratic National Party, argued that the government’s tolerance of other forms of
2018] LEGAL DEFIANCE 1495

O’Connor wrote that the forum may be designated “for use by the public at
large for assembly and speech, for use by certain speakers, or for the
discussion of certain subjects.”125 Courts should, in addition to determining
the state’s intent in opening a designated public forum, examine both the
nature of the property and “its compatibility with expressive activity.” 126
Once this designated forum is created, the government retains its interest in
the property just as a private party would and may “preserve the property
under its control for the use to which it is lawfully dedicated.” 127 As long as
the government keeps open the designated forum, any time, place, and
manner restrictions are subject to strict scrutiny––restrictions must be
reasonable, and content-based regulations must be narrowly tailored and
serve a compelling government interest. 128
A designated forum can be made “generally available” to a class of
speakers,129 which is distinct from the “selective access” granted in a non-
public forum.130 The Court has found public forums where public
universities designated meeting space for university-recognized groups,131

speech (leaflets, etc.) created a limited public forum. Id. at 720. The Court disagreed, as no such forum
was expressly created, and held that the restrictions placed on the sidewalk (a law against soliciting
contributions) were reasonable. Id. The Court drew a class-based distinction between leafleting and
soliciting. The class of members allowed to leaflet could do so because one need not “ponder” a leaflet
like one must ponder a solicitation when received. Id. at 734; see also Marc Rohr, The Ongoing Mystery
of the Limited Public Forum, 33 NOVA L. REV. 299 (2009) (discussing the characterization of the limited
public forum and its vagueness). The government retains the power to “limit” the designated forum it
creates, as listed above, but the extent of that power and corresponding First Amendment categorization
is unclear.
125. Cornelius v. NAACP Legal Def. & Ed. Fund, Inc., 473 U.S. 788, 802–04 (1985); see also
Perry, 460 U.S. at 45.
126. Cornelius, 473 U.S. at 802.
127. Adderley v. Florida, 385 U.S. 39, 47 (1966). If the function of the property would likely be
inhibited by allowing expression that comes with a public forum, the Court is unlikely to find that a
public forum has been created. Cornelius, 473 U.S. at 804; see also Greer v. Spock, 424 U.S. 828, 838,
840 (1976) (upholding military reservation regulations that prohibited partisan political speeches,
demonstrations, and leaflet distribution as the commanders were free to prevent what they saw as a clear
danger to the “loyalty, discipline, or morale” of his soldiers).
128. Perry, 460 U.S. at 45–46. The government may close or alter the forum anytime it wishes.
As long as the government keeps the forum open, “it is bound by the same standards as apply in a
traditional public forum.” Id. at 46; see also Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666,
677 (1998) (citing Cornelius, 473 U.S. at 802) (“If the government excludes a speaker who falls within
the class to which a designated public forum is made generally available, its action is subject to strict
scrutiny.”).
129. See Widmar v. Vincent, 454 U.S. 263, 264–65 (1981) (finding limited or designated public
fora where a school expressly allowed all university-recognized organizations to use rooms for group
meetings).
130. Forbes, 523 U.S. at 678 (citing Widmar, 454 U.S. at 264) (finding a broadcast debate to be a
designated forum open only to candidates with popular support). As a note, while the Court makes this
distinction between general access and selective access, its example of general access still only yields
access to those within the school community who are school-recognized student groups. Id. at 679.
131. Widmar, 454 U.S. at 267; see supra note 129.
1496 WASHINGTON UNIVERSITY LAW REVIEW [VOL. 95:1479

where a city opened a municipal forum for expressive activities, 132 and
where a state statute mandated open forums at school board meetings. 133
Legal graffiti walls could be considered traditional public fora, especially
if the government opens a wall near a public park or city center, where other
speakers may protest or distribute leaflets. In Mahoney v. Doe, the Court of
Appeals for the D.C. Circuit upheld a defacement statute curbing citizens’
ability to “write, mark, draw, or paint” on any public property without
consent from its proprietor. 134 The court noted that the sidewalks involved
were traditional public fora, but held the regulation survived First
Amendment scrutiny because it was narrowly tailored and served the
compelling government interest of promoting aesthetic appearance. 135 In
addition, the court deemed other modes of communication, like banners, to
be sufficient alternatives to writing on public surfaces. 136
In a similar case, Osmar v. City of Orlando, a Florida district court found
that a sidewalk in front of City Hall was a traditional public forum, even
with regard to chalkers. 137 An Occupy Wall Street protestor challenged his
indictment under the city’s anti-chalking statute, arguing that the law as
applied infringed on his First Amendment free speech rights. 138 Other
groups, he argued, had been able to chalk the sidewalks after receiving
permission.139 The court agreed, finding the city had selectively enforced its
law by permitting favored speech like chalk supporting sports teams, for
example, while prohibiting less popular or disfavored speech. 140 However,
painting on a wall is not equivalent to standing by that wall and speaking
ideas aloud, as evidenced by the very promulgation of anti-graffiti
regulations.141

132. Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 555 (1975) (invalidating local directors’
decision to deny petitioners the ability to show the musical “Hair” at municipal theatres, as the theatres
were “public forums designed for and dedicated to expressive activities” and the denial constituted prior
restraint without justification).
133. City of Madison Joint Sch. Dist. No. 8 v. Wis. Emp’t Relations Comm’n, 429 U.S. 167, 174–
76 (1976) (upholding the ability of a teacher to speak at a school board meeting despite the school
board’s fear that such speech would constitute impermissible negotiations, as the school board meeting
was “open to the public” and the regulation prohibiting negotiation was impermissibly broad).
134. 642 F.3d 1112, 1115 (D.C. Cir. 2011).
135. Id. at 1118.
136. Id. at 1119.
137. No. 6:12-CV-185-Orl-DAB, 2012 WL 1252684, at *5 (M.D. Fla. Apr. 13, 2012).
138. Id. at *1. The protestor was a member of the local group “Occupy Orlando,” part of the
national “Occupy Wall Street” movement. Id.
139. Id. at *2.
140. Id. at *5.
141. See, e.g., United States v. Murtari, No. 5:07-CR-387, 2007 WL 3046746, at *5 (N.D.N.Y.
Oct. 16, 2007), wherein a district court noted “[t]he fact that defendant may have a right to stand and
hold a sign outside of the Federal Building does not give him the First Amendment right to write on the
plaza in chalk or with any other medium, permanent or otherwise.” See also PETA v. Giuliani, 105 F.
Supp. 2d 294, 318 (S.D.N.Y. 2000) (the fact that a speaker may address an audience from the platform
of a public monument would not confer upon the speaker the right to paint a message on that monument
2018] LEGAL DEFIANCE 1497

Ultimately, government-sanctioned graffiti walls should instead be

considered designated public fora. The government is explicitly deeming a
piece of property open for “generalized use” by graffiti and other artists, a
specified class. The government does not pre-approve any work, which
disposes of any claim that the walls are non-public fora. Publicly-owned
walls are not traditionally places for expression, and while one could argue
for a traditional public forum classification, a designated-public forum
classification is more plausible and easier to defend.

D. Speech Not Meriting Protection

There must be limits to expressive content on government-sanctioned

walls for the same reasons that the Supreme Court allows censorship of
obscenity, defamation, fighting words, and other categories of speech. 142
The difficult question is who will define this unprotected speech.
Historically, courts have risen to the task, despite the question’s difficulty:
the Court in Roth v. United States discussed, for example, the “tough
individual problems of constitutional judgment involved in every obscenity
case.”143

E. The Solution in Portland

The provocative LePage mural was covered by another artist, but some
in the city called for the Water District to forbid art on its walls. Last March,
the PWD Board of Trustees held a city council meeting and voted to keep
the wall available for public art. Water District spokeswoman Michelle
Clements reported over fifty people in attendance, most of whom favored
keeping the wall free for use. 144
But if Portland’s Disney-loving friend had not replaced LePage’s painted
hood, the dilemma would have had to be addressed. This Note will now turn
to a framework that considers legal graffiti walls to be government-

or to “readorn” with graffiti property owned by the Government or another person). The D.C. Circuit
rejected this argument, saying the argument that a street—typically a traditional forum—was instead a
designated public forum excluding certain mediums of expression, like paint or chalk, was an “odd
inversion of the typical forum dispute.” Mahoney, 642 F.3d at 1117. However, such an “inversion”
would likely stand in court, largely because graffiti on public property has historically been prohibited,
unlike public soapbox discourse or distributing leaflets. A graffiti artist is requesting a new right, not a
traditional one.
142. Roth v. United States, 354 U.S. 476 (1957) (obscenity); Chaplinsky v. New Hampshire, 315
U.S. 568, 572 (1942) (fighting words); Beauharnais v. Illinois, 343 U.S. 250 (1952) (defamation). Other
categories of speech may include perjury, solicitations to commit crimes, blackmail, and child
pornography. See Frequently Asked Questions—Speech, F IRST AMENDMENT CTR., https://perma.cc/
6NBF-MNP2.
143. 354 U.S. at 498.
144. Morin, supra note 7.
1498 WASHINGTON UNIVERSITY LAW REVIEW [VOL. 95:1479

designated fora, as individual projects are not subject to government pre-

approval. As such, a court should subject any regulations or removals to
strict scrutiny. In practice, the image of LePage in his KKK garb would have
to be truly obscene, as discussed above, to be removed per the request of
Mayor Strimling.145 Similarly, any restriction as to time, place, or manner
of painting on legal walls would have to be reasonable and viewpoint-
neutral.146

IV. THE GOVERNMENT’S ROLE

The unwillingness or unlikeliness of artists to come forward could create

a potential for government censorship of legal graffiti walls that violates
both the intent of the forum and the free speech rights of the artists. The
preemptive solution to this potential abuse could come either from the
government itself or private individuals and organizations. Private
organizations could dedicate themselves to taking a watchdog role. A local
organization could, for example, designate wall-watchers to walk the walls
once a week to ensure graffiti works are respected and not covered by local
government based on their content. Of course, the organization would have
to do heavy monitoring to catch a government official covering art––if a
piece of graffiti is covered, how can the watchdog organization know
whether the government or an individual covered it up? What if an off-duty
police officer bought his own paint and covered the work?
Private organizations could likely think of other ways to discourage
government censorship of legal walls. However, the government itself is in
a better position to prevent censorship. The government can do this in three
ways. First, public officials must recognize the presence of a legal graffiti
wall147 and maintain a strong commitment to free speech and expression

145. The obscenity bar is a high one, however, and it seems unlikely that the LePage mural would
have merited removal. The mural’s fate, had the Mickey painter not changed the cloak into ears, is
beyond the scope of this Note.
146. In line with designated public forum law, see Perry Educ. Ass'n v. Perry Local Educators'
Ass'n, 460 U.S. 37, 45–46 (1983). Were PWD and the City of Portland to designate painting hours, for
example, they would need to consider that artists with scathing political messages may prefer painting
in the dark. A regulation against painting after dark might be impermissible, even if the law’s motivation
is safety. Such a statute, while allowable on its face, would tend to dissuade deviant speech—the exact
speech for which a legal wall attempts to provide a forum. See White, supra note 13, at 257 (explaining
that graffiti artists are oftentimes in a marginal or transitional status, and that a major purpose of graffiti
is protest).
147. While the majority of legal walls will likely be spaces that already sustain heavy graffiti, the
city may choose to construct a legal wall instead. If so, the city should consider the potential artists and
messages that will be conveyed, and the placement of the spaces. Community leaders would have to
look inward to determine if the community includes those who would use the legal wall. Instead of
shoving a government-sanctioned wall in a back corner, shielded from the eyes of the public, city leaders
should, and must, make these walls publicly viewable to create an adequate forum for those with ideas
to express. See McAuliffe, supra note 25, at 525 (“The very location of these legal walls, at the back
2018] LEGAL DEFIANCE 1499

thereon. Simply put, the government or university governing body should

do what it says and allow free speech in its created forum.
Second, a local government should establish clear guidelines and
procedures for cases in which a work does cross the line into obscenity or
other unprotected content. 148 When the police receive a call regarding a
troublesome work, they should follow set procedures. For example, the
officers could photograph the work, send the picture to a judge who
determines whether the work is protected by the First Amendment, and act
according to the judge’s decision.149 Additionally, the judge would be
restrained by First Amendment jurisprudence. These procedures need not
be complicated or time-consuming, but need only allow the local
government, and particularly the court, to balance its role as a protector of
minority voices with its responsibility to enforce community standards.
Third, the government must refrain from vilifying graffiti itself. 150
Citizens cannot be expected to express themselves on a legal graffiti wall if
they know heavy stigma awaits those who use it. Anti-graffiti rhetoric also
has a broader impact than just undermining the purpose of a legal graffiti
wall: such rhetoric may undermine a culture and its voice altogether. Derek
Alderman and Terri Moreau, in their article exploring the recent Graffiti
Hurts campaign, 151 argue:
Defining graffiti as painful, as destructive, and as a plague excludes,
marginalizes, and silences other ways of knowing and responding to
the graffitists, graffiti, and the complex nature of their appearance . . .
[anti-graffiti o]rganizations such as Graffiti Hurts play a critical and
often unquestioned role in not only vilifying graffitists but also
justifying broader, exclusionary ideas about political identity and

end of parks, the rear of basketball courts at the end of dead-end streets, away from commercial centres,
signified the fear of youth, feeding moral panics around the threat of youth, and the need to keep youth
at a distance in places that are marginal to the operation of the rest of society.”). City leaders should also
remember that they retain power to revoke designated forums, and while they should be slow to exercise
that power, it should free leaders to experiment. For example, the city may decide against creating a
legal graffiti wall in fear that the area around the wall will become unsafe at night. If safety becomes a
concern, or if the legal wall only increases costs of monitoring after a substantial amount of time, the
city can disband the forum without First Amendment concerns. Other considerations––who decides
which surfaces? who monitors the walls for unprotected speech?––would have to be worked out in time,
as the wall becomes an integral part of the city square.
148. See discussion on speech not meriting protection by the First Amendment, supra p. 38 and
note 142.
149. Id. This procedure is not unheard of—judges are regularly called on to make obscenity,
fighting words, and other categorical speech determinations.
150. However, refraining from vilifying graffiti itself is distinct from vilifying vandalism and
destruction of property.
151. Graffiti Hurts was a program “designed to address the growing graffiti problem in urban
areas and small towns . . . .” The program provided grants to communities for anti-graffiti efforts.
Moreau & Alderman, supra note 14, at 112.
1500 WASHINGTON UNIVERSITY LAW REVIEW [VOL. 95:1479

what counts for citizenship.152

If the local government recognizes a legal wall, that same body should
embrace, or at least refrain from vilifying, the expressive form for which it
provided a medium.
For many communities, this self-restraint will seem too tall a task for too
low a reward. Local governments may simply provide legal spaces subject
to pre-approval.153 Some communities may refrain from providing these
spaces at all, or they may continue allowing individuals and businesses to
provide privately-owned spaces. 154 If they do so, potential free speech
confrontations will be avoided.
On the other hand, the prevalence of government-sanctioned spaces may
grow. Twenty years after Marisa Gomez called for governments to use
abandoned spaces for legal graffiti walls, Eric Felisbret, the author of
"Graffiti New York,” made the same challenge. 155 He called cities to “work
to create and preserve legal venues where aspiring artists, who want to stay
safe, can work and paint,” pointing to a popular former graffiti park called
5Pointz that “brought tourists to the area and international acclaim.” 156
These legal walls re-imagine the public space, incorporating more voices
and more expressive forms. If legal walls gain popularity and an artist
challenges government censorship of such spaces, the judiciary should
adopt a strict scrutiny categorization that affords the same protection to
graffiti artists as that enjoyed by street speakers or pamphleteers in the
context of a designated public forum. If the city chooses to create a legal
graffiti space, it must recognize the space and make a commitment to allow
free expression on the legal wall, create and abide by clear procedures when
handling potentially unprotected expression, and refrain from vilifying
graffiti and graffiti artists.

152. Id. at 118, 121.

153. Should the government reject an artist’s design because it is critical of the government or
another institution, the artist could challenge the denial as in Finley v. Nat’l Endowment for the Arts,
524 U.S. 569 (1998). See supra note 89. Applicants would know (given appropriate, content-neutral
criteria) their designs would be accepted even if critical or evocative, if they met certain criteria. Rather
than the court determining whether the local government overstepped its boundaries after a graffiti work
was painted, as I propose above, the court would act before the painting to examine permit denials.
However, pre-approval itself may dissuade certain political messages, and the sponsors of rejected
designs may not have resources or connections to file a lawsuit.
154. See discussion supra note 65 about other private wall owners.
155. See also Kramer, supra note 44, at 250 (“Should public officials in New York City, for
example, reconsider current policies that attempt to suppress graffiti and, instead, work with and
incorporate legal graffiti writers into civil life?”).
156. Felisbret, supra note 65; see also Gómez, supra note 10, at 701.
2018] LEGAL DEFIANCE 1501

CONCLUSION

Government-sanctioned graffiti spaces are those areas provided and

policed by the government, but not subject to government pre-approval.
There are few such walls in the United States, but if these walls were the
subject of a legal challenge, the courts should classify these spaces as
designated public fora. Artists can use their talents to communicate
whatever messages they choose, free from government pre-approval, but
still subject to reasonable time, place, and manner restrictions.
The government’s capacity in governing these spaces may be tricky.
Artists have little opportunity or incentive to protect their work from
government censorship, and outside interest groups are also unlikely to
spend the time and resources to ensure the government is not unfairly
covering graffiti speech. Thus, the government must act to restrain itself
with delineated procedures and objectives.157 The state must allow artists
the freedom to allow the wall to fulfill its purpose––facilitating speech––
while still monitoring the wall in light of the interests of the community.
Legal graffiti walls may or may not present a First Amendment problem
in the future. If they do, perhaps future local officials could take the advice
of the Portland Herald, endorsing PWD’s stance against Mayor Strimling’s
call for removal of the KKK LePage mural. The Herald wrote:
That’s the First Amendment in action – welcoming to a wide range
of public expression, if sometimes messy and even irritating. At a
time when people can avoid news that doesn’t comfort them or
confirm their pre-existing notions, we could all use a little more of
that messiness.158
And if the Herald is right, American cities should be equipped with the
attitudes and guidelines to protect that messiness.
Kelly Oeltjenbruns*

157. I recognize that government self-restraint is a suspect task. However, our federal system
requires the government to do this quite often; the Congressional Oversight Committee, for example, is
made up of members of Congress. See Full Committee, COMM. ON OVERSIGHT & GOV’T REFORM, https:
//perma.cc/BGP7-J3UD.
158. Editorial, Our View: During Debate Over LePage Mural, Free Speech Flourishes,
PORTLAND PRESS HERALD (Sept. 12, 2016), https://perma.cc/BJL7-G66W.
* I am grateful for Professor John Inazu’s initial guidance in my writing, and to the diligent
Washington University Law Review editors who helped ready this Note for publication. I am also
indebted to my wonderful family—Brad, Lori, Emily, Melanie, Tracy, Owen, Josh, and Candi—for
their constant love and support.