NYC Spray-Paint Ban Challenged
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Seven students are suing to challenge a new, harsher version of New York City's anti-graffiti law:
Instead, why don't thesekids adults who happen to be under 21 have an open-and-shut case based on simple rational basis review? A criminal statute must be rationally related to a legitimate government interest. There is simply no legitimate government interest here (combating graffiti is a legitimate government interest; combating the possession of spray paint, without a showing of criminal intent, is not).
Moreover, even if there were a legitimate interest, a possession proscription would not be rationally related to it, since there are perfectly reasonable uses of that which is being banned. This possession ban is disgracefully overinclusive. It is not automatically true in every instance that every minor with a can of spray paint is intent on creating graffiti. It might not even be true in the majority of instances — who can tell? One way or the other, this law bans perfectly proper and harmless activity and is therefore a travesty and, I submit, is a violation of due process.
It is not a valid function of government to prevent legal activities in the name of deterring illegal activities. Punish the crime, not the nebulous or imagined precursors of the crime. (See, e.g., the "War on Sniffles.") It is not a valid approach to criminal law for the government to relieve itself of the burden of showing criminal intent.
POST SCRIPT: Anyone in the Bloomberg Administration up for banning duct tape — since it too is being used for unlawful activities?
The group, backed by fashion designer Marc Ecko, argued in federal court that the city went too far by banning people under 21 from possessing spray paint or broad-tipped markers.Here's what troubles (depresses?) me about this litigation: why should it have to be couched in a First Amendment challenge (and one which, I think, is flawed and unlikely to prevail)?
Gabriel Taussig, a lawyer for New York City, said the law "strikes a proper constitutional balance between the First Amendment rights (to free speech) and the need to control the long-standing plague of graffiti."
Instead, why don't these
Moreover, even if there were a legitimate interest, a possession proscription would not be rationally related to it, since there are perfectly reasonable uses of that which is being banned. This possession ban is disgracefully overinclusive. It is not automatically true in every instance that every minor with a can of spray paint is intent on creating graffiti. It might not even be true in the majority of instances — who can tell? One way or the other, this law bans perfectly proper and harmless activity and is therefore a travesty and, I submit, is a violation of due process.
It is not a valid function of government to prevent legal activities in the name of deterring illegal activities. Punish the crime, not the nebulous or imagined precursors of the crime. (See, e.g., the "War on Sniffles.") It is not a valid approach to criminal law for the government to relieve itself of the burden of showing criminal intent.
POST SCRIPT: Anyone in the Bloomberg Administration up for banning duct tape — since it too is being used for unlawful activities?
Related Posts (on one page):
- NYC Spray-Paint Ban Challenged
- Bloomberg
TriesTried to Censor Spray-Paint Event
Posted by Kip on
26 April 2006
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