Chalk Wars: The Continuing Struggle for Expression

BY TREY DAHL —

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Since the Occupy Wall Street movement began in September 2011, following the financial crisis and recession of 2008, there has been a multifarious range of stories documenting the often heavy-handed response of local law enforcement to the activity of grassroots political activism, and the various tactics used by municipalities and law enforcement agencies to discourage or prohibit the expression of free speech. This blog post will outline the issues surrounding the use of city ordinances and police discretion to restrict the expression of speech through certain mediums, including that of temporary, water soluble sidewalk chalk. Such actions by police officers often overstep the authority of the State as granted by the Constitution, leading to potentially “expensive and time-consuming litigation.” Since 2008, the ACLU has played an important role in the conflict and has been an ally of arrested protestors  across the United States.

Let us begin with the most recent example: a dispute regarding an activist arrested for writing a political slogan in erasable chalk on the old Federal Building at 212 3rd Ave. S. in Minneapolis.  The activist, Melissa Hill, 34, had printed the slogan “Don’t Enlist, Resist” outside the old Federal Building, which housed the Military Entrance Processing Station, on June 8, 2011. She returned the next day to find the message partially erased, leaving only the word “Enlist.” Hill began to reprint her message when she was ordered to stop by security guards, handcuffed, and detained for about an hour. In addition, her backpack was taken and searched.

While Hill was never criminally charged, she did reach a settlement agreement in a suit filed by the ACLU on her behalf. Pursuant to the settlement, the city of Minneapolis, the Federal Protective Service, and a private security firm have agreed to pay $5000 to Hill, and all parties agreed that using erasable chalk on public sidewalks is a protected First Amendment right in Minneapolis. Despite the lack of charges, the settlement came as a response to pressure put on the City and its officials by the ACLU, which has taken up its usual role as defender of constitutional rights. Additionally, Hill previously agreed to a $15,000 settlement in 2011 from Hennepin County, MN—this after being issued a trespass notice by the Sheriff’s Office for writing chalk slogans on the Hennepin County Government plaza during Occupy protests.

Other cases have arisen where cities have actively enforced ordinances regarding the damaging or disfiguring of public sidewalks against Occupy protestors using water soluble chalk, such as in the city of Defiance, Ohio.  The ACLU of Ohio made a statement on September 26, 2013, warning the City of Defiance about the consequences of cracking down on political “sidewalk-talk” this Halloween, threatening potentially “expensive and time-consuming litigation” if the City enforces its ordinances in violation of the First Amendment The warning by the ACLU stemmed from an event last year, when members of Occupy Defiance wrote messages in chalk on city sidewalks the night before the City’s annual Halloween parade. The City, through City Law Director David H. Williams, has responded that the ordinance itself has nothing to do with the nature of the messages—instead stating that “[citizens] can say whatever they want… [b]ut they can’t appropriate a public asset for their own purposes”The ACLU, however, has held firm in its understanding that declaring the use of temporary chalk to be illegal vandalism and an appropriation of a public asset is both absurd and “blatantly unconstitutional.”

Another recent example of defending chalking as a protected mode of expression under the First Amendment arose much closer to home, in Sarasota, Florida. Chris Young, a 40-year-old disabled Iraq War veteran, was handcuffed by police, taken to jail, and released when friends posted his $1,240 bail. He was arrested for writing political slogans, in chalk, on sidewalks (a video of the arrest may be viewed here). Young was charged with four counts: trespass after warning; obstructing an officer; impeding pedestrian traffic; and tampering with city property. The tampering charge was based on Sec. 21–41 of the Sarasota City Code, which states “No person shall in any way tamper or interfere with any of the property owned by the city” (see also State law reference – Criminal mischief, F.S. § 806.13).

Young’s fate changed when the ACLU arranged for Derek Byrd, a Sarasota defense attorney, to represent the political activist against the City for what the ACLU viewed as a clear violation of Young’s First Amendment rights. The ACLU and Occupy Sarasota organized a “Chalk for Freedom Rally,” where the ACLU commissioned an artist to chalk the Constitution and First Amendment on a park sidewalk (a video of the artwork and rally may be viewed here). Subsequently, the State Attorney’s Office dropped all charges against Young, in a move that Byrd claims “further validates that the Police Department made a mistake for arresting a man for free speech. One can only hope the police use better discretion in the future.” One certainly must hope, as protests and other forms of political and socio-economic expression occur daily, that police will in fact use better discretion. This is especially true when almost immediately after dropping the overzealous charges, the Sarasota Police Department was notified that Young intended to file suit for a violation of his civil rights, including “false arrest, retaliation for the exercise of First Amendment rights and malicious prosecution.”

The non-violent creative methods of public expression that have grown from the strategies of the Occupy movement—especially those that are temporary, water soluble mediums—must be protected under the First Amendment. Understanding the limitations the First Amendment places on the law enforcement activities of the State, officers who uphold the rights and duties of the Constitution are the front line in preventing costly litigation over expression that has repeatedly been found in the settlement agreements to lack a compelling governmental interest as grounds for restricting speech. Yet discretion  is developed and structured in officers’ minds throughout the training process, and great attention should be paid to the manuals and guides associated with instances of protest, expression and demonstration response training.

Despite the recent series of victories for the ACLU, the fight does not end here. The above caveat requiring law enforcement departments to develop training criteria that proactively avoid the headaches of litigation must be implemented. To date, changes have only come with the threat of costly civil rights suits and the negative public stigma attached to defending such charges. Anywhere the rights of those bold enough to publicly proclaim their grievances with the social order are curtailed and restricted by oppressive municipal law enforcement, pro bono defense attorneys are greatly needed, along with the support of the ACLU and similar organizations, to continue putting pressure on these departments through cause lawyering and impact litigation. If realized, increased awareness and participation will lead to protocol changes that allow for a respect between police and protestor, and for flourishing of creative freedom of expression in non-violent, non-damaging displays of the public use of reason.