The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Tucson v. City of Seattle, decided Tuesday by Judge Marsha Pechman (W.D. Wash.):
On January 1, 2021, Plaintiffs wrote political messages, some of which were critical of the Seattle Police Department (SPD), in sidewalk chalk and charcoal on "eco-block" walls that were temporarily erected by the City outside of the SPD's East Precinct. Tucson wrote the words "peaceful protest" in charcoal, while the precise messages the other Plaintiffs wrote are not clearly identified.
Plaintiffs were arrested for violating a Seattle ordinance that at the time said,
[A.] A person is guilty of property destruction if he or she:
[1.] Intentionally damages the property of another; or
[2.] Writes, paints, or draws any inscription, figure, or mark of any type on any public or private building or other structure or any real or personal property owned by any other person.
[B.] [1.] It is an affirmative defense to property destruction under subsection [A.1] that the actor reasonably believed that he had a lawful right to damage such property.
[2.] It is an affirmative defense to property destruction under subsection [A.2] that the actor had obtained express permission of the owner or operator of the building, structure, or property.
[C.] Property destruction is a gross misdemeanor. "Property destruction" … is punishable by imprisonment of up to 364 days and a fine of up to five thousand dollars.
The Ordinance has since been amended to make the absence of permission an element of A.2, rather than having permission be an affirmative defense.
The court preliminarily enjoined the operation of subsection A.2 of the ordinance (but apparently not A.1), concluding that "Plaintiffs have demonstrated a strong likelihood of success on the merits of their First Amendment overbreadth argument":
Defendants argue the Ordinance serves the City's interest in "preventing even temporary visual blight." The Court acknowledges that "[i]t is well settled that the state may legitimately exercise its police powers to advance esthetic values." But Defendants have failed to articulate just what blight troubles it and why such a sweepingly broad law is narrowly tailored to avoid such troubling blight. On its face, the Ordinance sweeps so broadly that it criminalizes innocuous drawings (from a child's drawing of a mermaid to pro-police messages written by the Seattle Police Foundation that can hardly be said to constitute "visual blight" and which would naturally wash away in the next rain storm. Based on the record before it, the Court finds the Ordinance fails to narrowly target the purported visual blight. The Court finds that Plaintiffs have shown a likelihood of success on the merits of their claim….
While the Ordinance is facially neutral, it is not narrowly tailored. The purported need to prevent property destruction could be accomplished without a provision criminalizing speech in public areas without permission. The Ordinance is not narrowly tailored to serve the government interest of avoiding property damage or "visual blight." And the Ordinance provides no guidance as to how an individual might apply for or obtain "express" permission from the City to engage in sidewalk chalking.
And the court concluded that the Ordinance is unconstitutionally vague:
First, the Ordinance appears not to give fair notice. The Ordinance's criminalization of property damage is overly vague given that it provides no boundaries on what constitutes "damage" and how an ordinary citizen is to interpret the term. For example, it is wholly unclear whether one might "damage" property in violation of the Ordinance by attaching a streamer to someone else's bicycle or writing a note of "hello" on a classmate's notebook without express permission.
Second, the Ordinance impermissibly delegates enforcement of the Ordinance to the SPD without any guidance or boundaries. This is evident in the fact that SPD has apparent, unfettered discretion to enforce the Ordinance or not. While there is allegedly a policy not to arrest children drawing rainbows on the sidewalk, the Ordinance itself allows the police to do just that and to arrest those who might scribe something that irks an individual officer. This highlights the unbounded discretion that impermissibly allows for subjective enforcement. Plaintiffs have also highlighted how the Ordinance may criminalize a variety of innocuous activities—which range from signing a guest book to drawing in the sand on a beach to marking public utilities on the street. Whether this conduct prompts criminal enforcement all depends on the whim of those enforcing the Ordinance. This highlights the Ordinance's impermissible vagueness.
I'm not sure whether the decision is entirely correct. But it does leave room, I think, for narrower ordinances, for instance ones that (1) forbid unauthorized writing that is much harder to remove than chalk, especially when it causes significant damage; (2) perhaps forbid even chalking in places, such as indoors, where the chalk can't just be easily hosed off; or (3) provide for implied as well as express consent (as in the writing a note on a classmate's notebook). The decision also doesn't preclude private property owners from removing the writing, though query whether it would forbid the city from selectively hosing off some chalking on public property when it wouldn't hose off other chalking.
Braden Pence and Nathaniel Flack (MacDonald Hoague & Bayless) and Neil Fox represent the plaintiffs.