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Wednesday, August 24, 2005


Subway Paint and City Taint

I recently referenced a First Amendment battle between designer Marc Ecko and the City of New York after the Bloomberg Administration attempted to rescind a license the city had given to Ecko’s company, Ecko Unlimited. Upon learning that the outdoor event involved the painting of graffiti on mock subway cars, the city balked, with Paula van Meter, a city attorney, arguing in court that painting subway replicas is not protected speech because it "necessarily simulates a criminal act.”

Defacing subway cars is hardly a joke…We just should not be giving permits out to events on the street that encourage vandalism in the subway cars.
Thus spake Mayor Michael Bloomberg, who weighed in, demonstrating that like his predecessor, Rudy Giuliani, his understanding of the First Amendment was virtually non existent. With this logic, a depiction of Christ on a cross would be censored by New York, since it might “encourage” crucifixions.

In 2001, just prior to Bloomberg’s election, I created an ad image for an art exhibition raising the question as to how Bloomberg, if elected, would treat art in relation to the First Amendment. In a bizarre move, to the amazement of many, ArtForum magazine, which had already accepted payment for the ad, abruptly yanked it, deeming it too offensive.

Fortunately, Judge, Jed S. Rakoff of Federal District Court in Manhattan ruled the city’s actions unconstitutional as well as demonstrating an appreciation of art clearly lacking in the Bloomberg camp, and mocking Bloomberg’s argument:
By the same token, presumably, a street performance of 'Hamlet' would be tantamount to encouraging revenge murder…As for a street performance of 'Oedipus Rex,'…don't even think about it.

Paula van Meter went so far as to try convincing Judge Rakoff that the simulated painting of subway cars would generate “a genuine and imminent danger that it will be repeated.”

Added Judge Rakoff:

Such heavy-handed censorship would, moreover, fall particularly hard on artists, who frequently revel in breaking conventions or tweaking the powers that be.

Marc Ecko won the day, however, as did the First Amendment. While some argue that murals are not graffiti, or that graffiti is distinct from spraycan art, these pedantic distinctions often fall within the exclusive purview of academic luxury, irrelevant to the artists, property owners, law makers and enforcers who are mired in a complex and dynamic quagmire.

A strategically placed scribble can represent a political message as strong as an elaborately commissioned, overtly political masterpiece. How do we reconcile precious resources spent enforcing the criminalization of art while the homeless seek shelter beneath the imagination of the nameless? Like any art form, graffiti can be atrocious or beautiful beyond belief. Censorship, on the other hand, is always really ugly.

Said Ecko, following the ruling:

Today is further affirmation that graffiti is without question the most powerful art movement in recent history. This event was conceived as a tribute to the roots of graffiti culture, a time in New York City's history that I chose to believe was worth fighting to preserve. I never envisioned having to go to Court when we started working with the City on this event 10 months ago, but was left with no other choice when the City asked us to change our chosen art canvas and, as such, tried to censor my first amendment rights and those of these great artists by attempting to dictate how we express ourselves.


Graffiti is an art form without borders, one which touches people of every gender, age,race, income class and political affiliation on a daily basis and today's decision is further affirmation that it is here to stay. Graffiti does not, as some in city hall have claimed, have to be a gateway to crime. It can also be a gateway to opportunity and success when channeled properly.



It’s always a good thing when the First Amendment triumphs.

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