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Town Could Clamp Down On What Is Said
February 19, 2016

O

riental’s new graffiti ordinance contains legal inaccuracies, violates the U.S. and North Carolina constitutions, and puts the Town at serious risk for expensive lawsuits. It is also unnecessary. Within the memory of most of us, there has been only one “graffiti incident” in Oriental, and it was resolved amicably. (That incident involved some painted language that said bad things about Wal-Mart, thus expressing a sentiment that many have come to share.)

Michael Tigar

The ordinance provides that a property owner may be criminally and civilly liable for any inscription that “includes profanity or other unacceptable language or damaging, libelous or slanderous remarks toward a business or individual.” This determination is to be made by the Town Board without further guidance in the ordinance. If the owner is absent from the state, notice of proceedings may be given by a single publication in a newspaper published in the Town.

Here is a (partial) list of the serious problems with the ordinance, starting with the poor (and in some instances, nonsensical) definitions of graffiti:

The Supreme Court has held that offensive and unacceptable language used as part of a political message is protected by the First Amendment. The leading case involved a four letter word that almost everyone would agree is “profanity.” The First Amendment is the one that comes before the Second Amendment. Those who wrote the Constitution put it first for a reason.

The word “unacceptable” is so vague as to provide no guidance at all, and using it as a basis to restrict or punish speech is also unconstitutional.

If you Google “damaging,” one example in the first definition is “damaging allegations of corruption.” Suppose that a homeowner paints a sign on his home, visible from the street, saying that “X is a crook,” when X is a local public official suspected of misapplying funds entrusted to his or her care. (This is a hypothetical, but such a thing could happen.) This graffiti may be damaging to the public official, but it cannot be the basis for civil or criminal liability unless the statement’s author knows it is false or acts in flagrant disregard of contrary evidence. This is a legal principle established during the 1960s civil rights struggles, when local officials sued newspapers for publishing harsh characterizations of their actions.

Therefore, it is unconstitutional to punish speech that is merely “damaging.” On an average morning at The Bean, folks can be heard casting aspersions on individuals and businesses. Example, “Did you see that idiot try to back that sailboat into the slip! They ought to keep him out of that marina, just to make it safe for the rest of us!” That sort of remark is not prohibited – yet – but the maker of the statement better not put up a sign that says “Captain X can’t sail worth a damn. Don’t hire him.”

A “libelous” statement can, under certain circumstances, be the basis for a civil lawsuit by the victim of the libel, but there are many constitutional and other defenses to such a lawsuit. A Town Board meeting is not the place to make that kind of determination, and the summary procedure provided by the ordinance is inconsistent with the Constitution.

“Slanderous” means an oral false and defamatory statement. The ordinance could not conceivably apply to oral expression of any kind. The inclusion of “slanderous” suggests that whoever wrote this ordinance needs to brush up on the law.

Service by publication, as provided in the ordinance, violates Due Process of Law. There are many Supreme Court cases directly on point.

Finally, if someone enters on private property without the owner’s consent to inscribe graffiti, that is a trespass and can be punished under existing law. Therefore, this ordinance adds unnecessary complications to what has been a fairly clear body of law. This fact also highlights the inherently discriminatory character of the ordinance. It enacts a prohibition on what owners of property may do on their own premises.

If you do an internet search, you will find that disputes over graffiti, yard signs and other similar expression produce huge amounts of litigation. People care about their right to express themselves, even in ways their neighbors find offensive. Free speech, especially impolite, insulting or nasty speech, riles people up. (Indeed, the Supreme Court has held that cross-burning may be constitutionally protected. I find it difficult to agree with the Court’s majority on that, but it is the law of the land and it governs Oriental’s Town Board.)

The practical consequence of all these disputes is a great deal of litigation. The prospect of such litigation not only envisages legal fees and costs, but money damages. The Town Board ordered a willow oak tree cut down because one of its branches might fall on someone and provoke a lawsuit. Yet, in the same meeting the Board sailed right into the dangerous waters of constitutional litigation.

If any lawyer or law student would come forward to defend this ordinance, I am willing to meet that person in a public forum to discuss these issues.

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Click here for the law passed (along with Mr. Tigar’s notes).

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A lawyer and law teacher for almost 50 years, Michael Tigar has taught constitutional law to students, lawyers and judges and advised individuals and businesses on the issues raised by the ordinance. He has argued 7 cases before the US Supreme Court. He lives just outside Oriental.