NEW YORK — Young adults can legally buy spray paint and broad-tipped markers because the city’s effort to stop graffiti by banning their access to those items seems to erode their First Amendment rights, a federal appeals court said yesterday.
The 2nd U.S. Circuit Court of Appeals made the finding as it upheld a decision by U.S. District Judge George B. Daniels to block the city from enforcing a law that would have prevented sales of the spray paint and markers to those between the ages of 18 and 21.
Seven high school and college students sued the city after it began to enforce anti-graffiti laws that went into effect Jan. 1, 2006. They say they need spray paint and broad-tipped markers to create effects such as mists, fades, blends and different textures that cannot be accomplished with brushes.
Scott Shorr, a lawyer for the city, expressed disappointment in the latest ruling.
“The city enacted the new anti-graffiti restrictions as a tool for reducing graffiti vandalism by young adults, not to limit lawful artistic expression. Of course, the city will continue its efforts to combat the blight of illegal graffiti,” said Shorr.
Attorney Daniel Perez, who represented the artists, said the ruling was not a surprise.
“Every court that has considered this law has struck it down,” he said. “The only thing this law accomplished was to take spray paint out of the hands of young artists. The city has persuaded no one that it cut down on graffiti.”
The May order by Daniels was a temporary ruling meant to stop the city from enforcing the law until all of the facts of the dispute were explored in more depth and a permanent ruling could be issued.
The rewritten laws extended a ban to young adults that had already prevented those under the age of 18 from buying graffiti tools but allowed them to possess them. The graffiti instruments include aerosol spray paint, broad-tipped indelible markers and etching acid.
“There is no rational basis to single out 18-year-olds, 19-year-olds and 20-year-olds more than any other group in the adult population,” Daniels had said.
In its written decision in Vincenty v. Bloomberg, a three-judge panel of the 2nd Circuit said the challenged portions of the anti-graffiti law “appear to burden substantially more speech than is necessary to achieve the city’s legitimate interest in preventing illegal graffiti.”
The appeals court also said it was unpersuaded by the city’s argument that young artists can have friends, older relatives or an art school purchase spray paint and broad-tipped indelible markers for them or can use unregulated materials such as non-indelible markers.