Prosecutors in Clark County, Nevada, have charged four activists with "conspiracy to place graffiti and defacing property" after the men used sidewalk chalk art to protest police brutality in Las Vegas. "Murder = paid vacation for cops," read one of several slogans drawn in front of the Clark County Regional Justice Center and the headquarters of the Las Vegas Metropolitan Police Department.
According to the Las Vegas Sun, the protesters are shocked that they’re being charged, as it the attorney working on their case:
Attorney Robert Langford, who is providing pro bono representation to the protesters, said he thinks the charges were ridiculous.
Langford said prosecutors are claiming power-washers and a graffiti-abatement team were used to wash away the protesters’ messages so that the expense would raise the criminal classification to a gross misdemeanor. Each gross misdemeanor charge carries the threat of a year in jail.
Langford called the charges "draconian" and said he plans to fight the case on First Amendment grounds. He said he believes the protesters were targeted because of what the chalk said, not what it did.
Clark County prosecutors aren’t the first of their peers to go after political chalk art. At the height of the Occupy Wall Street movement, prosecutors in Orlando and San Diego went after protesters who used chalk, and lost badly.
Orlando charged Timothy Osmar with violating a law against "writing or painting advertising matter on streets or sidewalks” after Osmar used chalk to write "All I want for Christmas is a revolution" and "the revolution will not be televised" in front of Orlando City Hall in Dec. 2011. The city kept Osmar in jail for 18 days before dropping the charges. In turn, Osmar sued the city for violating his First Amendment rights, and won; the suit cost Orlando almost $200,000 in legal fees and damages.
San Diego’s city attorney, meanwhile, charged Jeff Olson with 13 counts of vandalism for using chalk to write "No thanks, big banks" and "Shame on Bank of America," in front of San Diego’s Bank of America branches in early 2012. Not only was Olson acquitted of all charges, but San Diego Mayor Bob Filner publicly declared the case "stupid" and a "waste of taxpayer money."
But as the Sun also points out, there is at least one precedent ruling against political chalkers. In June 2011, The U.S. Court of Appeals for the D.C. Circuit ruled against a group of pro-life activists who wanted to use chalk on the sidewalk in front of the White House. Judge Brett Kavanaugh, an alumnus of the George W. Bush administration, argued in his concurring opinion that "no one has a First Amendment right to deface government property." He went on to write that political protesters can no more legally use chalk on the sidewalk in front of 1600 Pennsylvania Avenue than they can "spray-paint the Washington Monument or smash the windows of a police car." To drive his point home, Kavanaugh quoted former Supreme Court Chief Justice William Rehnquist:
"One who burns down the factory of a company whose products he dislikes can expect his First Amendment defense to a consequent arson prosecution to be given short shrift by the courts."
(The lead plaintiff’s argument that D.C. "has hosted youth chalk art contests, and other chalk-positive events" fell on deaf ears.)
Kavanaugh’s argument, while specious in its equivocation of chalking a sidewalk with burning down a building, actually sounds a lot like the one Clark County prosecutors are making by claiming that "a graffiti-abatement team" was necessary to clean the sidewalks. We'll see if it flies with a Clark County jury.
Top image: A member of Occupy LA writes on a wall with chalk at Pershing Square near the ArtWalk in downtown Los Angeles, California, August 9, 2012. REUTERS/Jonathan Alcorn