By Scott Sullivan
Editor
Saugatuck City Council decided at its Oct. 8 workshop to let well enough alone when it comes to chalk art on public sidewalks.
The question of whether it constitutes free speech or violates a city ordinance banning malicious destruction, damage of, marring, injuring or defacing property has come to light lately thanks to chalking by members of the local political group Good Trouble Indivisible.
Douglas City Council had two nights earlier had instructed city staff and police to enforce its similar ordinance at their discretion.
“The big part of law is interpretation of it,” Saugatuck councilman Gregory Muncey said at the Wednesday workshop.
“The city code does not speak clearly to this activity,” said city attorney Jake Witte.
“While using chalk to write a message on a sidewalk is a form of expression protected to some extent by the First Amendment, individual freedom of expression is subject to lawful limits when it takes place on government property, even in a traditional public forum like city sidewalks.
“Against this backdrop,” he went on, “there are three general approaches city council could consider:
“• Prohibit all public sidewalk chalk inscriptions. Although this would effectively prohibit one medium of expression in a traditional public forum, there would still be ample avenues for expression in that forum.
“For instance, a resident could simply stand there and speak, they could wear a shirt with an expressive message on it, or they could write in chalk on their own driveways or in a private parking lot.
“Pros: This is a relatively easy prohibition to enforce. All chalk-drawn messages on city sidewalks would be prohibited.
“Cons: This could be viewed as an overly restrictive approach that is not consistent with the city’s character. The challenge would be to enforce it or, if pressed in court, get a buy-in from the judge.
• Option two, said the lawyer, is allow all sidewalk chalk inscriptions.
“Pros,” Witte listed, “this option comes with low administrative burden as the city would not be putting itself in a position where sidewalk chalk inscriptions need to be reviewed or approved. This could also be viewed as consistent with the city’s character as a place that embraces expressive behavior and especially art.
“Cons: If the city takes this position it would essentially be allowing any messages to be written on its sidewalks, which means it would be surrendering its regulatory authority altogether. In addition to messages that could be offensive, disagreeable or inconsistent with the city’s character, this could also result in conflicts related to the use of sidewalks outside of residences or businesses for certain messages (for instance, a scenario in which someone writes “Eat at the Butler” on the sidewalk in front of Wicks Park Bar & Grille).”
• The last, Witte said, would be to impose specific requirements. “By way of example, this could include limits on size, how long a message can be displayed, what sidewalks can be used for this type of expressive activity and prohibitions on blocking or impeding the public use of sidewalks when inscribing a chalk message.
“Pros,” he went on: ‘This would avoid some potential conflicts and would help alleviate potential adverse impacts of this activity while still allowing a wide degree of expression.
“Cons: This would be the most administratively involved approach. If standards were created via the pending sign amendment to the city code, that amendment could be set up to impose generally applicable conditions to sidewalk chalk messages.
“This option would require legal counsel and the planning commission to spend time developing this issue,” the lawyer said.
“What problem are we trying to solve?” councilperson Joe Clark asked. “I suggest we let this one go.”
“It’s all very subjective. I’m fine leaving it as it is,” peer Lauren Stanton said.
“The challenge is not what they are saying,” said Russ Gardner. “It’s the action itself.”
“I’m totally against anything that would put an added burden on city staff our council.”
“This is sidewalk chalk,” Muncey said. “The rain washes it away.”
“As I take it,” said city manager Ryan Cummins, “chalking is permitted unless council takes action.”
“It is also our right as individuals to wash it off,” said Anderson. “I think the consensus is we don’t need to talk any more about this.”
