My former student Eric Soskin reports that chalking sidewalks does seem to be illegal in New York, the very place where the chalk-writing bicycle is scheduled to be deployed. N.Y. Admin. Code sec. 10-117 provides:
No person shall write, paint or draw any inscription, figure or mark or affix, attach or place by whatever means a sticker or decal of any type on any public or private building or other structure or any other real or personal property owned, operated or maintained by a public benefit corporation, the city of New York or any agency or instrumentality thereof or by any person, firm, or corporation, or any personal property maintained on a city street or other city-owned property pursuant to a franchise, concession or revocable consent granted by the city, unless the express permission of the owner or operator of the property has been obtained.
N.Y. Admin. Code sec. 19-138(b) provides:
Except as otherwise provided by law, it shall be unlawful for any person to deface any street by painting, printing or writing thereon, or attaching thereto, in any manner, any advertisement or other printed matter.
The City government has taken the view that this prohibits chalking — not implausible, given that even temporary chalking may be seen as “deface[ment],” and as “writ[ing] on . . . any . . . real . . . property owned . . . . by . . . the city.” Chalking is of course easier to remove than graffiti, which seems to have been the main target of section 10-117, but it does seem to be covered by the text of the ordinances.
The federal district court has upheld the ordinances (when applied to chalking) as constitutionally permissible content-neutral restriction that are narrowly tailored to the government interest in preventing “visual blight.” Lederman v. Giuliani, 2001 WL 902591 (S.D.N.Y.). The ordinances’ challengers didn’t seem to put up much of a fight, and the district court’s decision might have been influenced by the challengers’ failure to really rebut the City’s arguments; moreover, district court decisions are in any event not binding precedent.
Still, I suspect that other courts will reach the same result. Though streets are traditional public fora for demonstrations, leafletting, and other purposes, I suspect that the Court will treat unattended displays (even temporary ones) as outside the scope of what the government must tolerate in such fora. And the Court has indeed been open to such aesthetically justified ordinances, when they leave open ample alternative channels for expression (as this one likely would, though one could make a straight-faced though likely not winning argument to the contrary).
It will be interesting to see if the police will ticket the chalk bicycle man, and if he will fight the ticket.
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