A recent article in the LA Times newspaper described an artist who placed his
easel on the sidewalk in front of a bank branch office and produced a
painting of the building on fire. The police were called and
questioned the artist, taking notes of his name and address. The
artist stated that the painting was his commentary on banking
practices. Several legal issues are inherent in this situation.
Art and artistic expression is understood to have broad First
Amendment protection. In 2010, a majority U.S. Supreme Court opinion,
Brown v. Entertainment Merchants Association, invalidated on First
Amendment grounds a California statute that placed restrictions on the
sale or rental of video games. The decision indicated that generally
government cannot restrict expression "because of its message, its
ideas, its subject matter, or its content."
May the artist paint at a location on the sidewalk? There is a classic
1946 U.S. Supreme Court decision, Marsh v. Alabama, involving the
distribution of religious literature on the sidewalk of a company
owned town. The majority opinion allowed the distribution, indicating
that freedom of speech and religion has preferred status over the
company's private property. In a more recent decision, U.S. v.
Grace, decided in 1983, the U.S. Supreme Court described sidewalks as
historic public forums where expression may only be restricted for
compelling reasons.
May the police ask the artist's name, absent evidence of a crime being
committed? Police may always converse with individuals. The
individual need not respond; however, about half of the states have
specific legislation called "stop and identify" statues that require a
person detained on reasonable suspicion that he or she has committed a
crime to identify themselves. The precise wording of these statutes
varies, as do the judicial interpretations. In 2004 in Hiibel v.
Nevada, a divided U.S. Supreme Court upheld the Nevada statute. Even
in the absence of a statute, failure to identify one's self when
coupled with other circumstances, might provide a basis for the police
to arrest the person.
What should a business do when faced with this type situation? While
some mild, low key, reasonable safety based investigation may be
appropriate, not overreacting is the best course of action. Unless
there is a "clear and present danger," to quote the famous words of
U.S. Supreme Court Justice Oliver Wendell Holmes, Jr. in Schenck v. U.
S., 1919, the courts protect numerous forms of speech, including art.