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.

The Southern Baptist Convention is under fire for releasing publications "The Soldier’s Bible" and "The Soldier’s New Testament," through Holman Bible Publishers, the Nashville, Tennessee publishing company they own.

At issue is the use of official Department of Defense emblems that suggest, at barest minimum, an endorsement by the DoD. Versions exist for the Army, Air Force, Marine Corps and Coast Guard. Critics argue that the Defense Department-sanctioned bibles give the appearance of being official government publications, thus violating the First Amendment’s Establishment Clause.

According to an article by NPR’s Jeff Brady:

The Army says the use of its emblem "is authorized in publications and other printed matter of an official or quasi-official nature." The Army's Institute of Heraldry is the keeper of the emblem. If you want to put it on a T-shirt or bumper sticker, you first have to get permission from Stanley Haas at the Institute.

According to Brady, Army Chief of Chaplains David Hicks claims he's “perplexed how anyone would conclude this is the Army's official Bible,” since the front of the book states that Holman is the publisher.

I know from personal experience that Hicks’ faux surprise is disingenuous at best. Back in 1995, the United States Navy attempted to bar the use of a 1972 recruiting poster featuring the first African American used in a recruiting campaign. Servicemember Ed Graves had been discharged from the Navy a few years later for being gay, and I wanted to use the image in a CD ROM production of investigative journalist Randy Shilts’s book, Conduct Unbecoming, of which I had acquired the electronic rights. After I demanded clarification for the Navy’s denial, the Department of the Navy wrote the following:

The United States Naval Academy crest is a trademark registered with the United States Patent and Trademark Office (Reg. No. 1,810,681) pursuant to the Trademark Act of 1946, as amended (Lanham Act, 15 USC Chapter 22). The United States Naval Academy crest is predominately displayed on the poster in question which is an Academy advertisement. Its use, therefore, is subject to the approval of the United States Naval Academy.

My attorney, Michael Traynor, argued that the poster in question had been in the public domain since 1972, and that it was not copyrighted adding that copyright protection “is not available for any work of the United States Government.”

The Navy had also argued that usage of the image with the Navy seal implied endorsement of the CD ROM, the very argument David Hicks claims to be rejecting. The conduct CD ROM contained this disclaimer on the cover:

None of the images, photographs, and reproductions, digitized or otherwise, displayed herein or on the packaging, promotional material, or advertising material imply or are intended to imply official U.S. Department of Defense approval or endorsement of the images or opinions expressed. These images, photographs, or reproductions, digitized or otherwise, are presented for journalistic purposes only.

Even this however, was not good enough for the Navy, which was adamant that endorsement not be implied by allowing the use of the Navy seal. Mr. Traynor added:

We appreciate your identifying the United States Naval Academy's trademark rights as the source of your concern. Our client acknowledges those rights. However, protection for trademark rights under the Lanham Act is limited to protection against another's use of a designation to identify its business or in marketing its goods or services in a way that causes a likelihood of confusion. Such trademark rights do not override First Amendment rights.

There is no likelihood of confusion presented by ApolloMedia's use of an image of the poster in its CD ROM. It is not making any trademark use of the Academy's crest. It is not using the Academy's trademark to suggest any association between itself and the Academy or that the CD ROM is produced, sponsored, certified, or approved by the Academy.

In the end, my attorney stated:

If the Academy were simply asserting its federal trademark right as a ground for refusing permission, the matter could probably end there since our client acknowledges and is not infringing the Academy's trademark. The Academy does not have to grant permission and ApolloMedia does not need it.

That being said, I would venture to say that the Southern Baptists are doing far less than I did to avoid even the appearance of an official endorsement, and that the major distinction from a First Amendment standpoint relates to potential confusion relating to what looks like an official government sanction of a religious Bible, not endorsement of a journalistic endeavor.

Holman Bible Publishers may have a First Amendment right to use the emblems, and I don't think they should be deprived of such a right, but the Navy, it seems, was far more careful to avoid endorsing contributions of gay servicemembers than it cares to avoid mixing religion in violation of the First Amendment.

More press relating to our auction. There’s now a related page with image on our web site

New York City, you would think, is gearing up to make sure September 11, 2005 is simply a bland, overly-sentimental anniversary. Instead, they’re working really hard to make sure that an art exhibition celebrating graffiti as an art form does not receive a permit they recently revoked, even though the ACLU is now suing on behalf of Mark Ecko Enterprises, who had sought the permit for an outside exhibition.

Lawyers for the city well know -- or should know -- that the exhibition does not even remotely cross the Brandenburg line and that the city’s attempted censorship cannot be sustained under current First Amendment doctrine.

Art Eisenberg, Legal Director of the NYCLU stated in an ACLU press release.

At the expense of flogging a dead horse, once again, the Senator from Pennsylvania, Rick Santorum, is now waging war against unruly teenagers. Not those taking drugs or having unprotected sex though. Nope, Mr. Santorum has decided teens who would dare to talk and joke before a book signing at a Barnes & Noble bookstore, need to shut up or risk imprisonment.

The Senator, who is on tour promoting a book about pro-life – appearing on Comedy Central, for instance – while troops languish in Iraq with inadequate armor, does not consider curiosity and dialog one of the family values he so ardently espouses. Miriam Rocek of Newark, one of the honor role student troublemakers had this to say:

I knew about him from his promotion of the federal marriage amendment…I thought I would go and just talk to him during the book signing, tell him I disagreed with a lot of his policies, just engage him in dialogue.

Amanda Winnington, the community relations manager for the not-so-noble bookstore had this to say:

Rick Santorum's security team felt they were going to be a security threat and asked them to leave.

Only, it wasn’t simply a member of Santorum’s “security team.” It was a state trooper that threatened to arrest the kids if they dared to stay around.

There's a kind of chilling effect that comes about when police officers, acting in the role of providing security for public officials, make threats against people who disagree with that official.

That's what Drew Fennell of the Delaware ACLU told Al Mascitti of delawareonline.com/The News Journal.

The atrocious detail can be found on Al Macititti’s blog as well as a follow up opinion here.

Lots of attention pertaining to our upcoming auction. The fundraising auction – inspired to support FAP by Pulitzer Prize winning author and Advisory Board member, Michael Chabon, (who has been incredibly generous and instrumental in lining up such a talented array of writers) is a pretty awesome series of what we are certain will be most fortunate events. (The idea of holding a group auction came from Neil Gaiman, who recently auctioned off the name of a cruise liner in his upcoming novel, Anansi Boys, for 3.5k on eBay).

Michael Chabon and 16 of America's most prominent authors, including John Grisham, Rick Moody, Nora Roberts, Stephen King and Amy Tan have banded together to raise money for the First Amendment Project(FAP) through eBay Giving Works, the dedicated program for charity listings, starting on September 1st and running through September 25th, 2005. The authors will auction off the chance to name a character in their upcoming books, and donate the proceeds tothe FAP, a nonprofit organization that is dedicated to protecting and promoting freedom of information, expression, and petition. After 12 years of assisting activists, journalists and artists, FAP is struggling financially and in serious danger of closing. Michael Chabon, a member of FAP’s Advisory Board, turned to his colleagues in the literary world and enlisted them to rally to FAP's defense.

Additional writers include: Dorothy Allison, Dave Eggers, Karen Joy Fowler, Neil Gaiman, Andrew Sean Greer, Jonathan Lethem, ZZ Packer, Chuck Palahniuk, Lemony Snicket, Peter Straub, and Ayelet Waldman

To date, these are the details:

September 1-10: Michael Chabon, Amy Tan, Peter Straub, Andrew Sean Greer, Karen Joy Fowler

September 8-18: Stephen King, Lemony Snicket, Dorothy Allison, Jonathan Lethem, Ayelet Waldman

September 15-25: John Grisham, Nora Roberts, Neil Gaiman, Dave Eggers, Rick Moody, ZZ Packer

Stay tuned. I will keep you updated as things develop. In the meanwhile, further details are available at www.ebay.com/fap.

I was asked to prepare a legal analysis of how the proposed regulation would violate the 1st Amendment ... Since I shared this legal analysis with government attorneys, my firm, through another partner, filed a lobbying registration under the Lobbying Disclosure Act on which I was listed. This should have been noted on my questionnaire.

Indeed it should have been noted. The omission in question was revealed yesterday in a letter from Supreme Court nominee, John Roberts, to Senator Patrick J. Leahy of Vermont acknowledging that he had registered as a lobbyist for the cosmetics industry in 2001, and had neglected to disclose it, citing some lousy excuse that included the lobbying question failing to "trigger a memory of those meetings."

For all the talk of the nominee's relative youth, his fading memory of distant eras -- 2001 to be specific - does not portend particularly well. Roe v. Who? Was Chief Justice Rehnquist really forced to visit the hospital again? When was the first visit? Was my wife a feminist once? I do not recall supporting that woman's pro-bono, pro-life legal services. Not one time. Never.

Oh my, how quickly the elephants are beginning to forget.

The board of The American Society of Journalists and Authors (ASJA) voted unanimously to reverse an earlier decision to give its annual Conscience in Media award to imprisoned New York Times reporter Judith Miller. In an Editor & Publisher report, Anita Bartholomew, a freelance journalist who has contributed to, of all publications, Reader's Digest, for heaven's sake, stated:

The First Amendment is designed to prevent government interference with a free press. Miller, by shielding a government official or officials who attempted to use the press to retaliate against a whistleblower, and scare off other would-be whistleblowers, has allied herself with government interference with, and censorship of, whistleblowers. When your source IS the government, and the government is attempting to use you to target a whistleblower, the notion of shielding a source must be reconsidered. To apply standard practices regarding sources to hiding wrongdoing at the highest levels of government perverts the intent of the First Amendment.

Along with Arianna Huffington, who questioned Miller's role as an "embedded" journalist, Judith Miller's sympathy factor seems to be eroding as quickly as Robert Novak's.