Watch where you chalk, ’cause the courts might balk — is sidewalk graffiti protected speech?

Watch where you walk ’cause the sidewalks talk.

And you can’t keep a secret from the ground beneath you.

Step very lightly on the earth below.

Or before you know it everyone will know.

–“Sidewalk Talk,” Madonna (1984)

If you’re arrested for chanting a political message on a public sidewalk, that’s a slam-dunk violation of your constitutional rights. If you spray-paint the same message on the sidewalk, be prepared to defend your political beliefs from the inside of a cell.

But what about chalking? Is it more like paint, because it adheres to public property, or more like the spoken word, because it’s ephemeral?

A federal judge decided Friday that Orlando police went too far in arresting a homeless “Occupy” protester for chalking political slogans on a city sidewalk. U.S. Magistrate Judge David A. Baker ruled that a city ordinance that criminalizes “writing or painting advertising matter on streets or sidewalks” could not constitutionally be applied to demonstrator Timothy Osmar, whose scrawl on a downtown sidewalk called for “revolution.”

Osmar’s attorneys showed that the city had at times encouraged merchants to write messages of civic pride on city sidewalks; Baker found that history of selective enforcement to be a factor in Osmar’s favor:

The City’s encouragement of these particular uses of chalk demonstrates the fundamental difference between a temporary marking and a more permanent one (e.g., carving, painting or gluing a message). The City may not selectively interpret and enforce the Ordinance based on its own desire to further the causes of particular favored speakers.

Sidewalks are the law-school-textbook illustration of what the Supreme Court has called a “traditional public forum,” a government owned space that has always been regarded as compatible with free expression.

In a traditional public forum, the government’s ability to regulate speech is at its lowest. The method of speaking may be regulated — i.e., no riveting a protest sign into the sidewalk — but the content almost never may. That contrasts with other government property — e.g., the lobby of the courthouse, the waiting room of a public hospital — where the space is less compatible with picketing, and the government has a freer hand to regulate, so long as it does not favor particular viewpoints.

Last month, attorneys for a Minnesota woman cited for chalking on the pavement outside a Federal Reserve building filed suit against federal, state and city officials, claiming the citation violated the First Amendment. Melissa Hill was detained and issued a no-trespassing order banning her from the premises for a year, on the grounds that her protest message constituted “damaging public property.”

There is a surprisingly robust legal history about sidewalk chalk as a medium of expression, most of it unfavorable to the chalkers.

In one of the earliest cases, McKinney v. Nielsen, a federal appeals court decided in 1995 that Berkeley, Calif., police lacked grounds to arrest an activist who disobeyed an order to stop writing an anti-police message on the sidewalk.

Although the “auteur” was charged under a city ordinance against defacing property, the chalking ended up being tangential to the case. The evidence established that the officers really arrested Christopher McKinney because he disobeyed an order to immediately drop his chalk — he kept writing long enough to stroke an underline — and because he back-talked the officers. Neither, in the view of the California-based Ninth Circuit U.S. Court of Appeals, gave police probable cause to make an arrest.

Except for last week’s Orlando ruling, courts have been generally unsympathetic to claims that chalking on public property is protected First Amendment expression.

  • In Lederman v. Giuliani, a federal district court upheld the constitutionality of a New York City ordinance making it a crime to “write, paint or draw any inscription, figure or mark of any type on any public or private building or other structure,” including sidewalks. In a 2001 order, the court summarily threw out the constitutional claims of several street vendors who challenged the prohibition; the vendors prevailed, however, on their primary claim that the city could not require a permit to sell art or books on the street.
  • In Mahoney v. Doe, a federal appeals court ruled last July that it was constitutional to prohibit demonstrators from chalking on the sidewalk across the street from the White House under a District of Columbia ordinance that bans writing, drawing or painting “any word, sign or figure” on public property without consent. The U.S. Court of Appeals for the District of Columbia Circuit found that the ordinance served a “significant” government interest (“the esthetic appearance of the street in front of the White House”), and left open reasonable alternative means of communication — the challenger had, in fact, obtained a demonstration permit that allowed the use of signs and banners.
  • In Occupy Minneapolis v. County of Hennepin, a federal district court applied the same analysis as the Mahoney court, ruling in November that an unwritten county policy against chalking public sidewalks did not restrict the content of speech, and was justified by the “aesthetic interest” in maintaining a clean appearance at the county government plaza. The court noted that Occupy protesters had — and used — ample alternative forms of expression, including signs and leaflets, that required no marking of public property.

Given the mixed bag of legal precedent, Baker’s order likely will be appealed. But since (as Baker’s order pointed out) chalk is washable, it’s reasonable to wonder whether a mop and pail wouldn’t be cheaper.