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Nipping In Bud, or Cutting Speech?
February 26, 2016

O

riental’s Town Board on February 2 approved a graffiti ordinance, the passage of which took many by surprise. Just a month earlier, at its January meeting, the Board tabled a proposed graffiti ordinance after hearing that the anti-Walmart message spray-painted on the shuttered Town-n-Country grocery at Halloween would be painted over by month’s end, as per the building’s owner. The Town Board’s consensus at that January meeting was that if Oriental’s only graffiti in recent memory were cleaned up – to become only a memory – then there was no need to create a new law. The storefront was painted black on January 20. Two weeks later, the proposal for a graffiti ordinance was formally on the agenda for the February 2 meeting, though the expectation going in to the meeting was that the cleaned-up graffiti meant that Oriental had dealt with the issue and no law was needed. Then, the Board voted 3-2 for a graffiti ordinance – Commissioners Charlie Overcash, Barb Venturi and Sandy Winfrey in favor and David White and Allen Price opposed. In a guest column, attorney Michael Tigar laid out shortcomings he sees in the ordinance, such as overreach and 1st Amendment concerns. That prompted letters from readers – some agreeing, some disagreeing – Carol Small, Susan Dilllard, Pat del Rio, Eric Dammeyer, and Michael Tigar and Jane Tigar :

Dear Editor: 

Eric Dammeyer’s letter is wrong in many respects. He derides my letter as a “political point of view, and not a legal opinion.”  In fact, the vagueness and overbreadth constitutional issues I raised were the subject of three Supreme Court cases that I argued and won.  

He accuses me of demagoguery for warning that the ordinance may lead to lawsuits.  As I recall, the Town Commissioners consult legal counsel often to make sure their enactments do not create liability. 

Mr. Dammeyer mentions a swastika display.  He might be interested to note that in Virginia v. Black, the Supreme Court struck down a law that made it a crime to burn a cross as a Klan symbol.  Justice Scalia specially concurred, agreeing that burning a cross is a protected form of free speech.  I find his reasoning questionable, and I hope our Town never has to face such an issue.  But there it is.  

I hope the local shopkeeper on Broad Street will some day take down the Confederate flag on his porch.  Many visitors to the Town – and many residents – no doubt find it offensive.  But the First Amendment protects even this display.  

Mr. Dammeyer lists several forms of controversial speech, asserting that they are not constitutionally protected, when in fact the Supreme Court has held to the contrary. Indeed, concerning his example of leaflets that contain incitement, the relevant ruling was unanimous.   He also invokes “riot”, “terristic [sic] threats” and other tumultuous kinds of public expression.  None is relevant to the issue at hand, (but if anyone wants to know more of these matters, I wrote about them in my memoir, Fighting Injustice, and my book Thinking About Terrorism: The Threat to Civil Liberties in Times of National Emergency.)

All the letters, on all sides of this issue in Oriental, prove my initial point:  It was a mistake to pass this ordinance without a full public debate on its wisdom and validity. 

In my initial letter, I offered to participate in a public meeting on the relevant issues.  That offer still stands. Because, as Justice Louis Brandeis reminded us, the best antidote to disturbing speech is “more speech.” 

Michael Tigar
Oriental
2/27/16

To the Editor:

​​Eric Dammeyer misreads New York City’s ​​g​ra​f​fiti ​l​aws, the text of which you can read here:​ http://www.nyc.gov/html/nograffiti/html/legislation.html

Un​like the Oriental ordinance, New York City​‘s​ ​​g​raffiti ​l​aws attempt to be “content neutral” and do​ no​t mention forbidden ​categorie​s​ of words, ideas and thoughts.

It appears that in New York City, graffiti is only a crime if applied to a building without the owner’s permission. In Oriental, it’s now a crime if someone else puts ​graffiti​​ ​“deemed a public nuisance” ​on your building and you​ — ​the victim​ — ​don’t remove it. ​New York City does not punish the victim.

In Oriental, ​graffiti applied with the permission of ​​the ​building​‘s​ owner, if “deemed a public nuisance​,​” is ​also ​prohibited. ​I do not see such a prohibition in New York City’s laws.

​E​ven with its content-neutral and skillfully-drafted graffiti laws, New York City has had major litigation regarding graffiti. And lost. No doubt, it was costly.

Sincerely,

Jane B. Tigar
Oriental
​Member of the bars of Colorado and Washington, D.C.
2/27/16

To the Editor:

My thanks go out to Attorney Eric Dammeyer for his thoughtful and measured
Letter to the Editor about Oriental’s new graffiti law.

As a former attorney (I retired in 2014), I believe his explanation of the law and the limits on free speech were spot on. As a town resident, I believe we needed the graffiti ordinance. I am grateful that the Town of Oriental now has a power I hope it never needs to use.

Very truly yours,

Susan Dillard Oriental 2/26/16

To the Editor:

I am not a lawyer. (If I were I’d be cautious about challenging Michael Tigar on a constitutional question.) He did a great job of blowing our recent graffiti ordinance (born upstream in New Bern) out of the bullrushes.

In short, it’s bad law and will do poorly if challenged.

I do know that there is an adage or legal maxim that states “Hard cases make bad law.” It means that a single or exceptional case is a poor basis for a general law that covers all sorts of less exceptional circumstances. Such laws only serve to keep lawyers and judges employed at the expense of our bare-walled neighbors who pay the taxes.

Patrick Del Rio Oriental 2/26/16

Editor:

I am writing to present a supporting view on the Town’s new graffiti ordinance. Mr. Tigar’s letter was not a legal opinion, it is a political point of view, self-asserted as legally correct. The reality is that the right of free speech has been a difficult issue in our constitutional democracy since day one.

Oriental’s Graffiti ordinance was approved by the Town attorney. The City of New York has its own, extensive anti-graffiti laws, which it enforces. Try searching the internet for “broken window theory”. You will find the articles, both for and against the idea that graffiti accelerates urban decay.

To assert that the First Amendment protects any kind of “speech” is wrong. We have rights to most speech. We can get away with writing filthy books. We are not subject to “sedition” laws, as are the people of England. But speech in a constitutional democracy is not “categorically” free – there are limits. There is a balance.

Would you want to try joking about ‘bombs’ while standing in line for TSA in the airport? How about yell fire in a crowded theater or passing out leaflets urging angry protesters to riot? Would everyone in Oriental cheer for constitutional rights if a Swastika appeared prominently in Town? Our laws ban “hate speech” and “terristic threats.” We can legally get fired for saying certain things on the job. How would we respond if the graffiti was some racial epithet, a “forbidden word”, scrawled on a storefront?

When Mr. Tigar uses fear tactics, such as suggesting that the ordinance “puts the Town at serious risk for expensive lawsuits”, this is just demagoguery. As a Town, we are always vulnerable to be sued.

Further, it is a mistake to say the ordinance is ‘unnecessary’ and unrealistic to say it is a one-time event. May I point out that if the Town is to create any ordinance, we must enact it to prohibit it before it happens. We have had our first occurrence of graffiti which we were powerless to act upon.

It was not about the message, but the method of delivery. When someone in Town decides to disgrace their Town in order to vent their spleen, they can say what they want, but we need to prevent that type of delivery. Graffiti is a cowardly, skulking expression that defaces and spoils. This is not about content.

The Town Board and the Planning Board which I serve on are constantly struggling to get to the longer range planning things done that we all want. The volunteer Town Board is constantly diverted by the seemingly unending acts of individuals and businesses in Town who decide not to be good neighbors, who decide to ignore the GMO, or who selfishly act in their own interests. We all live in community with others and ought to have respect for them as well.

Finally, Mr. Tigar complains that the ordinance “enacts a prohibition on what owners of property may do on their own premises.” Really? Can I do whatever I want on my property? How about if I buy a lot next door to you, build a 20 foot concrete wall around my property line, sell drugs, shoot guns all day and allow anyone I want to put whatever graffiti they want on my walls. That’s my right. Right?

Eric Dammeyer
Oriental
2/25/2016

While Eric Dammeyer’s primary residence is Oriental, he maintains a law practice in Minnesota. He is Chairman of Oriental’s Planning Board.

Editor:

Oh my goodness, such a brouhaha.

Please Commissioners, get a grip. At least two of you can keep a clear head. We had one, remember only one, incident of graffiti that has ever occurred in our town. Now you pass this? And to what purpose?

There is not one person living in Oriental who will not be able to tell you the reason for that one incident of graffiti. The events that led up to the graffiti will never be replicated. And you decide to pass this nonsense?

Please let’s get busy on the bicycle path between 55 and Straight Farm Road. How about looking into development of our waterfront? Or making sure that Billy Flockhart is successful in his negotiations to purchase the vacant WalMart Building and develop a place for villagers to buy groceries. Yes, it is outside of the town limits, but can’t you get busy on things that really matter? Can you have such a lack of “business” to accomplish, that you need to have spent time developing something nobody wants and is really bizarre. I’m disappointed in you.

Carol Small Oriental 2/20/2016

More on Oriental’s graffiti issue:

Town Board Tables Graffiti Law – January 7, 2016 account.

Letters to the Editor – January 2016 – on ordinance when it was (temporarily) tabled.

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