05 Civ. 7335 (JSR)
Ecko Untld.
/>Plaintiff
-v-
Michael R. Bloomberg
Mayor of the City of New
York

The judge ruled that the Ecko graffiti block party must go on
and that the city must reinstate permit number MO4-042.

I went to
the Mark Ecko graffiti hearing today. Ever since the Bush Monkey painting
censorship ordeal I have been very sensitive to the frailties of free speech and
to what a huge extent art and artists play in constantly testing the thresholds
and even the common sense ideas protected in our First Amendment. This was the
first time that I went to a court case that was not my own and I have to say it
was quite inspirational and interesting. I was surprised that there were only
around 15 people I figured more people would be there. But T-Kid was there,
along with Ket and some Ecko people, but mostly reporters.

The
Federal court district judge, Jed S. Rakoff was a cool and humorous judge that
made the case rather interesting to listen to. I was amazed at the plainly
simple language both the judges and attorneys conversed in. It made for a rather
coherent and understandable example of the legal system and use of language and
the law.

I am no legal scholar but basically the city argued that the
Ecko event was not an art exhibit but rather a commercial event and therefore
was subject to commercial speech (a narrower version) and not free speech and
that the act of the artist doing graffiti on the mock subways was not protected
speech because it would, in the words of the City lawyer, “imminently cause
illegality.”

The judge did not seem impressed by the city’s arguments
from the get and was certainly not convinced that the act of painting mock
subway cars could incite imminent lawlessness.

The courtroom chuckled
when good judge mentioned to the city attorny that the city was mad that the
event was promoting graffiti artists since “they are the rebels that made it to
the big time.”

It was also interesting to note that when the city
lawyer did refer to the graffiti artists, she twice referred to them as
/>“world renowned artists.”

The judge said he would need 10 minutes
to deliberate but that turned into 20 minutes quickly.

The judges
ruling starts off calmly and to the point:

“The facts of this case
are simple. Plaintiff Ecko. Untld. is a fashion company, whose founder and chief
executive officer, Mark Ecko, has a passion for graffiti, as well, it would
seem, for making money.” That immediately brought laughter to pretty much
everyone in the courtroom and to Ecko himself.

The judge then goes on
to explain the particulars of the case.

He writes, “...the City wrote
a second letter to Ecko specifically objecting to the painting of graffiti on
the mock subway cars because “this method of display would incite criminal
behavior. That this was the city’s primary motivation in revoking the permit was
made evident that same day when Mayor Bloomberg, as quoted in the NY Times,
stated: ‘This is not really art or expression, this is, let’s be honest about
what it is: It’s trying to encourage people to do something that not in
anybody’s interest.” The judge also cited similar statements made by the mayor
on WABC radio.

Judge Rakoff explained that the based on 2nd letter
the city had sent to Ecko, the mayor’s statements, and the city’s own oral
arguments today, that the “sole reason stated in the August 16th letter for
rejection of the second application was the that the proposed graffiti painting
on subway cars presented too great a risk of inciting criminal behavior.”
/>
Rakoff writes, “The city’s claim that the exhibition is substantially a
commercial event was of doubtful substance when first raised, but now, given
Ecko’s concessions it is of no material substance whatever. What Ecko wishes to
sponsor, pure and simple, is a graffiti art exhibition with little or no
commercial speech of any consequence. ...Ecko will of course reap the goodwill of
being touted as the corporate sponsor, and, like many such sponsors, intends to
retain painted panels for future displays at its premises; but such incidental
benefits of commercial sponsorship do not transform a display of artistic
endeavor into a commercial activity.” Furthermore, over the many months, that
the City considered every aspect of the proposed exhibition prior to issuing the
permit, never once did it suggest that was a commercial event not qualifying for
the kind of permit issued.”

He then kind of scolded the city,
explaining, “The belated raising of the ‘commercial’ objection in mid August
was, the Court infers, simply a facade for what the city implicitly admits is
its only real objection, i.e., its objection to the painting of graffiti on mock
subway cars. Indeed, in the course of oral argument, the City had repeatedly
represented that, if the mock subway cars were removed, some sort of permit
would issue allowing the exhibition to go forward as scheduled.”

He
then cuts to the chase, “So, the only real issue is whether the City can
lawfully proscribe an otherwise-approved public art exhibition on its streets
because that exhibition involves painting graffiti on mock subway cars. The
City does not suggest, nor could it, that such painting is itself a crime, since
the ‘subway car’ panels are plainly mock-ups. But it claims the right to censor
this exercise of free speech expression because, in the words of the Mayor on
his radio program last Friday, the exhibition is tantamount to ‘encouraging
vandalism.’ By the same token, presumably, a street performance of Hamlet would
be tantamount to encouraging revenge murder. Or, in a different vein, a street
performance of ‘rap’ music might well include the singing of lyrics that could
be viewed as encouraging sexual assault.” And then he set the whole court into
an uproar finishing with “As for a street performance of Oedipus Rex don’t even
think about it.” I’m telling you this judge made the law and the case and the
process pretty interesting.

The judge also alluded that the “First
Amendment would be a weak reed indeed if the utterance of such expressions could
be banned from the City’s streets because, in the Mayor’s view, ‘It’s trying to
encourage people to do something that’s not in anybody’s interest.’ Such heavy
handed censorship would, moreover, fall particularly hard on artists, who
frequently revel in breaking conventions or tweaking the powers that be.”
/>
Judge Rakoff then went on and schooled the city. He writes, “No one
suggests, of course, that the actual painting of graffiti on subway cars is to
be condoned. Nor can it be denied that this crime has a ‘faddish” aspect that
may make it difficult to deter.” He then tells the city, the only constitutional
way to deal with graffiti is to, “prosecute those who actually commit this crime
to the full limits of the law, but not to ban those who, for artistic reasons or
otherwise, choose to make use of this motif, in mock form, as the mode of their
expression.”

The judge with eloquence delivered the final knock out
punch, “In the short, the denial of the permit on the stated ground that the
demonstration will ‘incite’ other to actually paint graffiti on subway cars is a
flagrant violation of the first Amendment and cannot stand. He cites Brandenburg
v. Ohio (1969).

He finishes to the relief of most of those in the
courtroom with, “For the foregoing reasons, the Court reinstates permit number
MO4-042 and orders the City, on pain of contempt, to effectuate it and enable
the Ecko street activity scheduled for August 24th, 2005 to occur as
planned.’

The few of clap lightly, everyone rose, and the first
amendment still prevails