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Court official rules sidewalk chalking not free speech

Court official rules sidewalk chalking not free speech


September 28, 2002
Sentinel staff writer

A Superior Court officer ruled Friday that writing in chalk on the sidewalk is not protected by the U.S. Constitution, and in Santa Cruz at least, is a crime.
Commissioner Irwin Joseph found homeless activist Becky Johnson and artist Tim Rinker guilty of defacing a city sidewalk. In June the two wrote slogans like “Vandals don’t use chalk” and “Sleeping is not a crime” on the sidewalk at the corner of Pacific Avenue and Cooper Street. Both were sentenced to serve 23 hours of community service, though their attorney, Ed Frey, vows to appeal.
The chalking incidents were part of a wave of confrontations between police and homeless people and activists over chalking on Pacific Avenue this summer. Nathan Kennedy was arrested after repeatedly chalking in front of Border’s Bookstore in a 24-hour period. Several other homeless people have been cited for chalking. Johnson was arrested in August on suspicion of misdemeanor vandalism for chalking. That case goes to trial in October.
Johnson maintains that what she did was legal and is a protected form of free speech under the First Amendment.
“Chalk is cheap. It is readily available, and it is a very effective way of communicating short messages to the general public,” Johnson told Joseph in an allocution statement that went so long Joseph eventually cut her off. “Chalk is not illegal. It does not rise to the level of defacement.”
Johnson compared the chalking she did on the sidewalk to performance art. Rinker said he was protesting what he called police harassment of homeless people downtown. Johnson said she thought the law, which has been on the books since 1964 but does not specifically mention chalking, is being selectively enforced as part of a police conspiracy to harass homeless people, a charge the police have always denied.
Joseph did not agree with any of Johnson’s arguments.
In his ruling, Joseph said that just because the chalk easily can be washed off the sidewalk does not make it protected free speech. He said he found no evidence of selective enforcement by police. He found that their right to free speech was not impaired by the ban on chalking and ruled that the city ordinance is constitutional and fully enforceable.
Johnson was reading a lengthy statement when Joseph cut her off, saying he would not “entertain debate” or “allow a filibuster” in his courtroom.
City attorney John Barrisone said he thought the ruling was just and would help give the city the ability to control its streets and maintain downtown.
Johnson alleged that Joseph’s ruling effectively makes all writing with chalk on the sidewalk illegal anywhere in the city, meaning the police must now ticket Girl Scout’s playing hopscotch as well as people drawing on the sidewalk during the popular First Night celebration, which has been canceled this year.
Rinker said the city has a tourist promotions video that shows people drawing on the sidewalk in chalk during previous First Night parties, and no arrests were made then.
Johnson plans to appeal her conviction and fight the other charges.
The outcome of Kennedy’s charges are unclear.
Contact Jason Schultz at jschultz (at)

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Yet the Chalking Continues

For Becky Johnson's response to the "make no waves" decision by Commissioner Irwin Joseph, see "Broken Windows, Broken Theory" below. Joseph was also the Commissioner who upheld $54 tickets against the Camp Paradise 4 last fall, even though they had no legal places to go. He denied access to court recording equipment to the defense team and refused to allow the media the right to broadcast its own tape of the proceedings.

For those who want to support others ticketed for chalking peace slogans and civil-rights-for-the-poor slogans on the sidewalk, please call HUFF (Homeless United For Friendship & Freedom) at 423-4833. Or e-mail me at rnorse (at)
More trials are coming up.

Johnson and Rinker are appealing Joseph's decision. Johnson has two more trials in late October and needs support.


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