Articles

How Selective Enforcement of Illegal Advertising Laws Punishes Creative Activism

(courtesy Occupy Museums)
The Illuminator projects “Koch = Climate Chaos” on the facade of the Metropolitan Museum of Art on Tuesday, September 9 (image via Occupy Museums)

The enforcement of city and state law pertaining to graffiti, advertising, and other signage has enormous power to visually shape public space. In New York City, enforcement is heavily skewed to ignore illegal commercial advertising, while simultaneously aggressively targeting graffiti and, in some cases, symbols of dissent.

On the evening of Tuesday, September 9, three protestors from The Illuminator were arrested by policemen in an undercover car as they tried to project a message onto the façade of the Metropolitan Museum of Art:

KOCH=CLIMATE CHAOS

The Met is a museum, not an oil lobby

The Illuminator was joining a protest organized by Occupy Museums in opposition to the renaming of The Met’s plaza after David H. Koch, a Met trustee and prominent funder of conservative causes, who gave the full $65 million for the plaza’s redesign and renovation. The three men were charged with “unlawfully posting advertisements,” a New York State penal code violation holding that a person who “posts, paints, or otherwise affixes to the property of another person any advertisement, poster, notice or other matter designed to benefit a person other than the owner of the property,” without having the right to do so “nor any reasonable ground to believe that he has that right,” is guilty of illegal advertising.

The Illuminator projecting onto the Fifth Avenue museum building.
The Illuminator projecting onto the Fifth Avenue museum building as part of a protest action with GULF on March 25, 2014 (photo by Hrag Vartanian/Hyperallergic)

The language of the law suggests that this violation hinges on the notion of “benefit.” In this case, the message projected onto The Met had no goal of benefiting a person or an organization. Grayson Earle, one of the three men arrested, told Hyperallergic that they are currently in contact with a lawyer who plans to fight the charge of illegal advertising, arguing that the projection was a legitimate exercise of first-amendment rights. The maximum sentence for illegal advertising, as a state-law violation, could include up to fifteen days in jail.

After understanding the definition of illegal advertising according to New York State law, anyone walking around New York City might wonder about selective enforcement: Commercial posters plastered on the side of a building or construction site — aren’t those examples of illegal advertising? And, in fact, they are. In addition to the guidelines outlined by state law, advertising is specifically regulated by the NYC Department of Buildings. The DOB regulations state that there are two kinds of commercial signage: an accessory sign “directs attention to a business at the sign’s location and is generally not considered advertising;” an advertising sign “directs attention to goods or services not found at the location of the sign.” Advertising signs are not allowed in residential or in “most commercial districts,” and “are not permitted on construction fences, scaffolds, and sidewalk sheds.” Additionally, within two hundred feet of an “arterial highway or a public park with an area of one-half acre or more … no advertising sign” is allowed.

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The Illuminator projecting onto the Fifth Avenue museum building as part of a protest action with GULF on March 25, 2014 (GIF by Hrag Vartanian/Hyperallergic)

I looked around my neighborhood and immediately found an example of illegal advertising on Ludlow Street. The posters were plastered along a temporary, wooden construction fence. They were not related to any business or organization located inside the building. As I stopped to take a picture, a man actually started posting more signs—in broad daylight. He looked unconcerned, took his time, and eventually finished and walked away. No one bothered him. The building, 127 Ludlow, is located in a commercial district, and as the building code specifies, some commercial districts have allowances for advertising. So, just to double check on the legality of these ads, I looked up the building permits, which can be found on the DOB website under “buildings information.”

127 Ludlow had permits for construction and for business accessory signage, but nothing that would pertain to what existed on the construction fence. Those ads are a clear example of illegal advertising, and the penalty for such signage is technically quite steep. The DOB specifies: “Signs found in violation of building and zoning regulations are subject to fines and forced removal. Penalties for first time offences are $10,000 each and subsequent violations are $25,000 each.” And, should the NYPD chose to prosecute an offender using state law, jail time could hypothetically be a penalty as well. But, obviously, if one judges by the sheer number of these signs, enforcement is almost nonexistent. Let’s compare this to the NYPD efforts devoted to combating another form of visual intervention in public space — graffiti.

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Illegal advertising on Ludlow Street (photo by the author for Hyperallergic)

The New York State Penal Code outlines graffiti law. Unlike illegal advertising, making graffiti is not a violation, but rather a more serious crime — a Class A Misdemeanor. Even simply possessing graffiti-making instruments is a Class B Misdemeanor. The law specifically defines graffiti as the “etching, painting, covering, drawing upon or otherwise placing of a mark upon public or private property with intent to damage such property.” “Without the express permission of the owner or operator of said property” any of the above manifestations of graffiti is illegal.

“Possession of graffiti instruments” is a shockingly vague law; “instruments” are outlined as “any tool, instrument, article, substance, solution or other compound designed or commonly used to etch, paint, cover, draw upon or otherwise place a mark upon a piece of property…” There is obviously a question of the intent of possession—what if I’m carrying spray-can paint with which I intend to paint my apartment? The law isn’t clear on exactly how motive might be determined, simply stating that possession must occur “under circumstances evincing an intent to use same in order to damage … property.”

The Citywide Vandals Task Force is a borough-wide NYPD team whose sole purpose is to combat “graffiti vandalism.” The taskforce was created by mayoral order in 1995, an example of the implementation in NYC of the “broken window” theory. The mission statement of the Task Force reads like a parody of totalitarian culture: “Also on the syllabus is help in identifying signs that one’s child maybe [sic] getting drawn into the graffiti culture. Parents sometimes dismiss their children’s actions as normal adolescent behavior when they are in fact signs of more nefarious associations.”

And there is actually a book of the top graffiti “offenders”:

Along with the database, the Task Force has put together a ‘Worst of the Worst’ book, a sort of vade mecum of the 100 or so graffiti vandals that the Task Force has identified as the top menaces. This book is packed with information on each offender; detailing their area of operation, tags, pedigree information and more. The Graffiti Coordinators in each patrol precinct have a copy and use it as tools (sic) to keep this crime in check.

According to statistics provided to Hyperallergic by the New York State Division of Criminal Justice Services, in 2013 in NYC there were 2,224 arrests pertaining to state penal code 145.60 (“Making Graffiti”), and 71 arrests pertaining to state penal code 145.65 (“Possession of Graffiti Instruments”). In the same year, six people without any prior convictions were sentenced to time in jail for making graffiti; among people who had a prior felony (of any kind), nineteen were given jail time. Making graffiti has a maximum sentence of up to one year in jail. And lest you think the NYPD draws a distinction between vandalism and art, Police Commissioner Bratton publicly objected to the Museum of the City of New York’s graffiti-focused exhibition “City as Canvas.”

Style Wars (1983) (image via Youtube)
Graffiti writers cover a New York subway in this still from ‘Style Wars’ (1983) (image via Youtube)

Hypothetically, one could understand why city government might want to diminish graffiti — especially hate speech, gang-related signs and targeted vandalism. One could even understand why The Met might be concerned about unapproved messages posted on its façade. Except, as it turns out, illegal advertising of a commercial nature is literally everywhere. The city does very little to enforce the removal of illegal corporate and commercial signs and posters, choosing instead to fund plainclothes policemen to arrest graffiti artists and, in the case of The Illuminator arrests, protestors. Once one becomes aware of the vast examples of illegal commercial advertising, the anti-graffiti crusade seems both ridiculous and an example of really poor bureaucratic taste; the arrest of the three members of The Illuminator looks like an intentional targeting of protest.

Artists Jordan Seiler and Steve Lambert have worked to expose the way in which public space is shaped by corporate advertising. In 2009, Seiler’s ongoing project PublicAdCampaign coordinated a collective action, New York Street Advertising Takeover, in which participants first whitewashed illegal billboards and then repurposed them as spaces for public art. Seiler told Hyperallergic, “We buffed 20,000 square feet of illegal signage…100 billboards.” Although a clear demonstration of correlation was never made clear, Seiler noted that “subsequently the city went after the company and removed all of their infrastructure, which I believe was around 400 street-level billboards.” Recently, Seiler has worked on NO AD: NYC, a free app that changes subway platform ads into art.

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Illuminator projection on the side of Cooper Union’s Foundation Building, May 2013 (photo by Mostafa Heddaya/Hyperallergic)

From 2004–2010, Steve Lambert spearheaded the Anti-Advertising Agency, which worked on projects and research designed to reshape corporate and commercial advertising in public space. One project within the Anti-Advertising Agency was Add-Art, a free, downloadable program that runs on Firefox to remove website ads and replace them with art. Another was The Bus Stop Bench Ad Project, which worked with Oakland residents to determine which bus-stop ads they found most bothersome; these ads were then replaced with images designed for each space by Packard Jennings.

In a conversation with Hyperallergic, Lambert clearly summarized the problematic reality of selective enforcement and the arrest of The Illuminator members: “Start fining these companies that are making thousands of dollars off of illegal billboards. It’s total selective enforcement. For political speech, they’re choosing to enforce this law as a way of stifling that speech, instead of enforcing the law consistently with everyone across the board.”

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