In the summer of 2005, Ecko Complex LLP applied for a permit to hold an art exhibition in Manhattan.  The exhibition would feature artists that would paint graffiti on the sides of a mock subway car.  Ecko received approval from a local community board and received a city permit to host the event. Shortly afterwards, the permit was revoked because of fears of encouraging vandalism, but under the pretext of commercial use.

Commercial Event

After Ecko received the permit, the City began to question whether the company wanted to host the event as a means to promote their new video game about graffiti painting. A permit to host a commercial event would be more expensive than a permit to host an artist exhibition.  On August 15, 2005, the City of New York revoked the permit seemingly because they believed the exhibition was actually a promotional event.  Ecko reapplied for a commercial permit which was also rejected in a letter on August 16, 2005. On August 18, 2005, Ecko requested the Court to issue an order forcing the City to reissue a permit enabling the holding of the exhibition.  Ecko also agreed that they would not include any promotional materials for the video game at the exhibition.  This concession demonstrated to the court that the supposed commercial nature of the exhibition was not the City’s actual problem with the artist exhibition. Nevertheless the court emphasized that displaying panels with the name of the corporate sponsor at the event would not automatically transform an artist exhibition into a commercial function.

Painting Graffiti/ Encouraging Vandalism

The City’s other issue with the exhibition was their fear that painting graffiti on mock subway cars would encourage vandalism.  They City expressed this fear in a letter to Ecko on August 16, 2005, stating that graffiti painting on mock subway cars “would incite criminal behavior.” Similarly, Mayor Bloomberg stated that the exhibition “is not really art or expression, this is, let’s be honest about what it is: It’s trying to encourage people to do something that’s not in anybody’s interest.” The City stated that if the exhibition did not involve mock subway cars, they would reissue the permit.

The Court ruled that Ecko should have its permit reinstated.  It is a violation of the First Amendment to refuse to issue a permit based on the fear that it could encourage others to paint graffiti. The case Brandenburg v. Ohio (1969) established that activities promoting illegal behavior cannot be prohibited unless it is definite that they will cause “imminent lawless action.” “The First Amendment would be a weak reed indeed if the utterance of such expressions could be banned from the City’s streets…such heavy handed censorship would fall particularly hard on artists, who frequently revel in breaking conventions or tweaking the powers that be.” (395 U.S. 444 (1969))