On July 18, 2005, plaintiff fashion company’s founder, who began his career as a graffiti artist, obtained a permit to host an Aug. 24, 2005, art exhibition at which other artists would paint graffiti on mock two-dimensional subway cars. In an Aug. 15, letter the City of New York revoked the permit, ostensibly on grounds that the exhibition was actually a commercial event promoting plaintiff’s forthcoming video game. A letter the following day, and statements by Mayor Michael R. Bloomberg, indicated that the permit was rejected because the proposed graffiti painting presented too great a risk of inciting criminal behavior. The court reinstated plaintiff’s permit. Citing Brandenburg v. Ohio, it held that the denial of the permit on the stated grounds that the demonstration would “incite” others to paint graffiti on subway cars was a flagrant violation of the First Amendment. The court also found no basis in city ordinances for the permit’s denial on the stated grounds.
From the opinion (sub. required):
The City’s claim that the exhibition is substantially a commercial event was of doubtful substance when first raised, but now, given [plaintiff]‘s concessions, it is of no material substance whatever. … 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 has repeatedly represented that, if the mock subway cars were removed, some sort of permit would issue allowing the exhibition to go forward as scheduled.
What on earth were they thinking at the city’s Corporation Counsel’s office? What on earth wacky agenda was being played out here? Considering the gold-plated hot shots the Law Journal tells us now populate the halls of the New York City Law Department, I would love some inside baseball on how exactly the legal boneheadedness of this decision was given a green light. I mean, once these guys sued, anyone could have seen the handwriting on the wall, no?