Another day, another speech restriction. This time it’s upholding a restriction against anti-abortion protester Patrick Mahoney and his desire to do chalk writing on the pavement outside the White House.
If you want my opinion – and even if you don’t – this is a worse decision than the Oberwetter case that inspired the Jefferson Memorial dance protests. They’re both based on the same justifications that Kevin told you about here – a content-neutral restriction and a compelling government interest. It certainly seems to me, though, that it’s kinda cruddy to lump in washable chalk with spray painting something or taking a hammer to it.
The code in question seems to be this one: § 22-3312.01. Defacing public or private property
It shall be unlawful for any person or persons willfully and wantonly to disfigure, cut, chip, or cover, rub with, or otherwise place filth or excrement of any kind; to write, mark, or print obscene or indecent figures representing obscene or objects upon; to write, mark, draw, or paint, without the consent of the owner or proprietor thereof, or, in the case of public property , of the person having charge, custody, or control thereof, any word, sign, or figure upon:
(1) Any property, public or private, building, statue, monument, office, public passenger vehicle, mass transit equipment or facility, dwelling or structure of any kind including those in the course of erection; or
(2) The doors, windows, steps, railing, fencing, balconies, balustrades, stairs, porches, halls, walls, sides of any enclosure thereof, or any movable property.
I suppose there’s a reasonable argument to be made that chalking the sidewalk is different than standing there with a sign – the sign, one assumes, you’ll take with you. Or we hope anyway. The chalk hangs around till it’s washed away by a person or the weather.
But honestly – the area outside the White House is such a gaggle of nutter it’s hard for me to imagine chalking the sidewalk to make being there any less pleasant. As opposed to someone slamdancing in the Jefferson rotunda, anyway. Does the fact that this doesn’t make anyone’s life more pleasant make any difference on the “compelling interest” question? I’d think so…