Young boy chalks a sidewalk following the police killing of Michael Brown in Ferguson, Missouri. Reuters/Rebecca Cook

A federal court has ruled that a Las Vegas ban on street chalking can’t be enforced selectively. Across the country, there’s more at stake than hopscotch.

Up until two weeks ago, you could verbally lambaste police from the sidewalks of Las Vegas, but you couldn’t write those same words down in chalk on those same sidewalks without the possibility of getting arrested. That’s what happened to Brian Ballentine and Kelly Patterson in August 2013, when Las Vegas police charged them with vandalism for chalking critical messages about law enforcement on the sidewalk in front of a police station. The two are members of an Occupy offshoot called the Sunset Activist Collective, and had been chalking messages about police misconduct around Las Vegas since 2011.

Two weeks ago, a federal trial court judge ruled partially in Ballentine’s and Patterson’s favor, agreeing with the activists that Nevada’s anti-vandalism law is unconstitutional—if it’s only applied when the city or state doesn’t like what’s scribbled. The activists’ lawyers argued that Vegas police have no problem allowing chalked words on sidewalks by playful kids. Or when the content doesn't criticize cops.

Chalked messages have the shelf-life of a Snapchat. They can be washed away at little cost to anyone. But if police are enforcing the law selectively, that’s a problem.

First Amendment-rights professor Eugene Volokh wrote in his Washington Post blog Monday that the federal court decision struck him as “quite right.” Three years ago, Volokh had a slightly different opinion: In July 2012,  Occupy activists were arrested in Los Angeles after a scuffle with police that was reportedly over a city crackdown on sidewalk-chalk protests. Volokh told a local radio station that the city was in the right, under California law, to do this.  

"California law says that any person who maliciously, with respect to any real or personal property not his or her own, defaces it with inscribed material, is guilty of a crime," Volokh told the station—though he did allow that the selective enforcement probably happens because police “never get called with regard to somebody playing hopscotch on the sidewalk."

Unfortunately, that’s not true. Mother Jones created this map in 2012 of all the
cities where chalk arrests have occurred; one in Richmond, Virginia, involved the arrest of a mother after her 4-year-old was found drawing images in chalk on rocks in a local park.

Some courts have protected street-chalking bans even in cases where free speech was at issue: In the nation’s capital, a D.C. Court of Appeals determined that local police were correct to enforce a ban on a 2008 “chalk demonstration” that activists wanted to hold in protest of President Obama’s position on abortion. They wanted to chalk those frustrations down on the sidewalk in front of the White House, but the police confiscated their materials. So the protestors sued the city. The D.C. appeals court rejected their claim, though, stating that the city’s defacement statute holds zero tolerance for any kind of graffiti—especially not at the White House, which has a substantial “interest in controlling the aesthetic appearance of the street in front of” it. Reads the defacement law:

It shall be unlawful for any person or persons willfully and wantonly to disfigure, cut, chip, or cover, rub with, or otherwise place filth or excrement of any kind; to write, mark, or print obscene or indecent figures representing obscene or objects upon; to write, mark, draw, or paint, without the consent of the owner or proprietor thereof, or, in the case of public property, of the person having charge, custody, or control thereof, any word, sign, or figure upon: Any property, public or private, building, statue, monument, office, public passenger vehicle, mass transit equipment or facility, dwelling or structure of any kind… .

Whoever wrote the statute must never have seen what police horses leave behind on government streets and sidewalks, especially during protests. Indeed, Volokh points, in his May 11 blog, to an article from Hamline University law professor Marie Failinger that calls the government’s aesthetic rights defense basically a bunch of horse shit.

“[I]t is difficult to imagine a worse place to make an argument for aesthetic harm than a public sidewalk,” writes Failinger. “[T]he sidewalk is quite literally ‘beneath notice’: people walk on it and may not even notice a chalk drawing, unless it is a large or arresting installation.”  

During a time when demonstrations against police have turned violent, as happened recently in Ferguson and Baltimore, governments would seem to have a compelling interest in supporting sidewalk-chalk protests. After all, it’s in large part due to residents being stripped of their voices in so many other ways that riots become a means of being heard.

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