Part 2. Graffiti: I Know It When I See It.
By: Arshag A. Mazmanian
Beauty is in the eye of the beholder, just as is ugliness. Supreme Court Justice Potter Stewart in addressing what constitutes hard-core pornography that is unprotected by the First Amendment’s Speech Clause recognized the difficulty in defining it, stating “but I know it when I see it.” Perhaps the same can be said of graffiti.
Brookline’s Graffiti Bylaw (Section 8.5.9.2) provides this definition:
For purposes of this by-law, ‘graffiti’ is intended to mean the intentional painting, marking, scratching, etching, coloring, tagging, or other defacement of any public or private property without the prior written consent of the owner of such property.
Section 8.5.9.3 provides:
The application of graffiti to the real or personal property of another is prohibited.
This means that an owner could deface his/her own real estate or automobile with what many of us may consider to be graffiti, especially if seriously offensive, without violating or triggering the Graffiti Bylaw. Why might an owner do this? Who knows? While the Town has certain controls over signs, the First Amendment’s Speech Clause can trump efforts to control what may be considered to be political speech. (There are, of course, libel laws for protection against graffiti that may be defamatory.)
If indeed graffiti is a serious problem in Brookline (a matter to be addressed in a subsequent installment), then an appropriate definition is vital: knowing graffiti when one sees it is not enough of a standard to satisfy due process. A Google search reveals many definitions, including:
Graffiti means any unauthorized inscription, word, figure, painting or other defacement that is written, marked, etched, scratched, sprayed, drawn, painted, or engraved on or otherwise affixed to any surface of public or private property by any graffiti implement, to the extent that the graffiti was not authorized in advance by the owner or occupant of the property, or, despite advance authorization, is otherwise deemed a public nuisance by [a] City Council. [See http://www.anti-graffiti.org/localrol.htm at page 2.]
This definition is much more precise and encompassing than the one found with Brookline’s Graffiti Bylaw.
While the Graffiti Bylaw definition of graffiti includes defacement of public property, Town-owned property is apparently exempt from the requirement triggered by the Police Chief’s notice to a property owner to remove graffiti within a specified time. (Section 8.5.9.4)
Since there is no graffiti removal requirement for Town-owned property, there can be no enforcement against the Town under the provisions of Section 8.5.9.5 of the Graffiti Bylaw. Why this unequal application? Graffiti on public property is as bad, and perhaps worse than on private property. Perhaps there is need for a Graffiti Hotline with both the Police Department and the DPW so that residents can report graffiti sightings on public property to make sure that the Town removes graffiti from Town property promptly.
Further with respect to the removal requirement (Section 8.5.9.4), it can be triggered only if the graffiti “can be viewed from a public place within the Town.” Thus, if seriously offensive graffiti on property can be viewed only from a non-public place (such as from a residence), removal cannot be required under the Graffiti Bylaw.
For the above reasons, and others, the Graffiti Bylaw is flawed. Weren’t there any attorneys on the Selectmen’s graffiti committee?
