If I painted a message on a building I own, can I be charged for creating illegal graffiti?

Answer

 Whether or not the state and city statutes are constitutional, and whether or not your spray-painted messages would be considered protected speech under the First Amendment, are necessarily fact specific inquiries that would require a fairly in-depth analysis of the First Amendment as it relates to political messages and/or graffiti.

While we are unable to provide specific legal advice through this hotline service, we can provide some general background information on the First Amendment that you might find helpful.

Generally speaking, the inquiry as to whether speech restrictions are permissible under the First Amendment turns on the type of space involved and whether the restrictions are reasonable in terms of time, place and manner.  Spaces such as sidewalks and parks have traditionally been used for conduct protected by the First Amendment, and are considered “public forums.”

Conduct in public forums is protected by the First Amendment and can only be restricted if a high standard is met.  In either a traditional or designated public forum, the government may restrict the time, place and manner of the speech through reasonable regulations, as long as enforcement is content neutral.

Content-neutral restrictions are those that are both viewpoint and subject matter neutral, i.e., do not contain any restrictions based on either the ideology of the message or the topic of the speech, whereas content-based restrictions are those that endeavor to restrict or prohibit speech based on either the viewpoint or subject matter.

 Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries.  In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.