Attractive Nuisance: Graffiti’s Resistance as Misunderstood by Law
April 22, 2022
Matthew Li

“...It’s a matter of bombing. Knowing that I can do it. Every time I get in the train, almost every day I see my name. I say ‘Yea, I was there, I bombed it.’ It’s for me, not for nobody else. I don’t care about nobody else seeing, or that they can read it or not.  It’s for me, and other graffiti writers that we can read it…It’s for us.” – A 17-year-old graffiti writer in the documentary Style Wars, 1983.

In the eyes of New York City’s law, written by former Mayor Mike Bloomberg, graffiti is a “ epidemic costing billions of dollars each year,” that “...has also been related to drug and gang violence as well as the occult” (Kelly & Bloomberg, 4). New York City’s Police Department categorizes different kinds of graffiti, from hate graffiti to generic graffiti – all are punishable by an arrest, scaleable fine, or jailing if “painted or applied with a marker, crayon, pencil, pen, or other homemade tool” (Kelly & Bloomberg, 3). Since hate graffiti is on the extreme end of the spectrum – that is in a different category about hate speech policies – the focus of this paper will be on how law reviews the spectrum of the street and generic graffiti – that is more about aesthetics. Regardless, there is some truth to graffiti's irritability when private property or something a community collectively values like a garden, park, or mural is altered or even destroyed. Yet, the way that the law describes graffiti by deeming it an “epidemic” disregards the deeper intentions behind why graffiti even exists in the first place. The philosopher Jean Baudrillard says that graffiti needs to be “heard and understood” because it often indicates a societal issue that is not being cared for (Assaf-Zakharov & Schnetgöke, 120). Even though the punishment for graffiti is often an arrest or fine, there are instances, like with Carlos Romero who was banned from any tools for mark-making for life, when those regulations are blown out of proportion with the crime. Even with the degree of punishment, graffiti is still an active “epidemic.” So who is really being served by these policies? Authorities will claim that targeting graffiti is another way to prevent other crimes from happening, but could attacking graffiti be an alibi for not tackling the fundamental problems that actually correlate to crimes, such as redlining or planned shrinkage? Graffiti and its aesthetics are symptoms of societal problems that are misunderstood by policies and those in power as the cause of major crimes.
Many poor and marginalized workers, in major American cities like New York and San Francisco, took on graffiti as an emotional outlet for their unlivable conditions in a newly privatized and commodified city during the mid-60s. Much of New York City’s changes in public spaces originated from the change in economic and demographic dislocation of deindustrialization. According to Benjamin Heim and Smithsimon Gregory, this deindustrialization was technological advancements and acceleration such as “containerization” with large freight ships that “robbed New York’s waterfront jobs between the 50s to 70s (Shepard, & Gregory, 7). As a result, many of those waterfronts were abandoned, whilst the economy fell and new immigrants continued to struggle for employment. Many of the elites of New York’s economy, such as bankers on Wall Street and Governor Rockefeller decided to build on that financial crisis in their own favor in 1972, by lobbying to restrict social welfare policies that would create jobs, make health policies more generous, and bolster workplace protections (Shepard, & Gregory, 9). This restriction helped redistribute money back to the rich like Governor Rockefeller, cheapen the cost of labor, shrink social programs, weaken social movements, and limit the role of the federal government in the economy (Ibid). By 1975, New York City was broke (Ibid).
As a result of the elite’s support for new economic redistribution, the blame for New York’s economic downfall was put onto the poor, homeless, blacks, and Puerto Ricans because of their seeming lack of effort to work. “It's the fucking blacks and Puerto Ricans. They use too many city services and they don’t pay any taxes,” as one of the spokesmen at New York City’s Municipal Assistance Corporation (MAC) claims (Ibid). As a result, the city implemented a “planned shrinkage” – such as eliminating public services like transportation or libraries – to remove “undesirables” from the street and to encourage them to become industrial workers. As Shepard & Gregory explain, “Those who could not [fit into the post-industrial workforce] would have a hard time maintaining a life in the city” (Shepard, & Gregory, 10). Government policy like redlining and planned shrinkage was best aimed “to create a good business climate rather than look to the needs and well-being of the population at large,” according to Heim and David Harvey (Ibid). In other words, public space is not for the poor.
Already by the 1970s, the social fabric in New York has divided different lifestyles, privileging those who had post-industrial jobs like being a doctor, mechanical engineers, bankers, or any “white-collar” jobs that avoided manual labor; this is when  graffiti, as an outlet for those of an unprivileged lifestyle, was closely associated with destitution and crime. Staeheli & Mitchell analyzes private space as a “sphere…often understood space of social reproduction in which bodily needs are taken care of, ideas are formulated…and the political subject capable of functioning in public is nurtured” (Staeheli & Mitchell, 537). Without the income to support a dedicated private space, where are the bodies of those who don’t fit to go? And where are those bodies to be nurtured? Graffiti was an outlet for the minority because it not only resisted the homogenization of work and life through its do-it-yourself ethos but also made visible an existence excluded by the city’s social structure. Shepard & Gregory emphasize graffiti’s sense of  “ [and improvisation as an] ingredient in which to mix people and communities'' (Shepard, & Gregory, 19). So graffiti was a visible claim, and cry, for diverse lifestyles that were being ignored and homogenized by New York City’s planned shrinkage and new economic climate. However, at the same time graffiti was rising, many poor and homeless resorted to crimes, like drug trafficking and stealing, in order to survive in that new world order. Many of these activities all happened at the same time and in similar neighborhoods, such as the waterfront where workplaces were abandoned. So it comes as no surprise that authorities, like police, transportation authorities, and the government, saw the rise of graffiti in the 70s in New York as a direct crime in itself, and the cause of other crimes. Graffiti was then seen as a virus to the city’s “cleanliness” and a sign of “unproductive” citizens. This prompted even stricter regulations on public spaces, such as high policing and punishment for graffiti. 
Tony Silver’s 1983 documentary Style Wars documents many sides to New York City’s peak graffiti phenomena, proving the divided attitudes on graffiti, lifestyles, and how citizens should behave and use public spaces and property. Throughout the documentary, interviews toggled between graffiti writers and transportation authorities with almost polar attitudes. Many of the young adolescent graffiti writers expressed their spontaneous intent behind “tagging” – writing names or symbols to mark territory – subway and bus walls, as a way to “bomb the system,” referring both to the transit system and the system of a “normal life” – fitting into the archetype of a white-collar worker. Bombing the system was a way for those who resided in neighborhoods such as the Bronx and Queens – without many resources like social programs – to create a new space where they could at least be seen and make known their post-industrial living conditions through the circulation of transit in the city. On the other hand, New York City’s Mayor from 1978 to 1989, Edward Koch responded to these kinds of “murals” on subways by saying that “...[Graffiti is all in the same of] destroying our lifestyle and making it difficult to enjoy life and I think has to be responded to. The response I think for a three-time repeater would be five days in jail” (Silver, 13:02). Koch’s perception of graffiti as “destroying…lifestyle,” shows us an opposite side to graffiti as a kind of parasite to the city, flattening the graffiti writers’ multi-dimensional intentions. Throughout the documentary, graffiti writers actually devised intricate plans that resembled architectural sketches, and carefully coordinated when to enact the sketch with an intensely focused performance. To those who are living under poorer conditions, graffiti is a medium that is a highly instinctual and necessary thing in order to feel alive, whereas to authorities, graffiti is an invasive epidemic to the general public.
Koch’s statement that graffiti is “destroying our lifestyle,” and his emphasis on “our,” indicates a “lifestyle” for a specific demographic that takes priority over others. In the context of New York’s post-industrial climate, that prioritized lifestyle is for those who are in political power, such as government authorities, and those fortunate enough to fit into the criteria of a white-collar job position. So for authorities like Koch to witness a visual alternation to their vision of the city, as an orderly place, and claim graffiti as an epidemic is for them to also refer to those poorer and mostly Black and Puerto Ricans as unwanted citizens.
Since graffiti was successfully gaining traction in New York City by the 1980s as an effective form of resisting homogenization, authorities and government bodies began to consume that spontaneity by regulating spray paint uses, policing public spaces, and transforming the role of graffiti through commissions, institutional programs, and funding. In “Reading the Illegible,” Katya Assaf-Zakharov & Tim Schnetgöke explain, “Graffiti artists are often very devoted to their practice with no economic gain often driven by artistic skills, the thrill of risk, gaining recognition in a community, and expressing social issues'' (Assaf-Zakharov & Schnetgöke, 122). This meant that a part of graffiti’s initial resistance was set outside of an established system of the economy and regulations on how public spaces were meant to be used, which is why it functioned as “self-expression.” Yet, according to Assaf-Zakharov & Schnetgöke, that self-expression began to fade as many things like locking up spray cans in stores and commissioning artists to make murals began to arise (Assaf-Zakharov & Schnetgöke, 120). Many of the rich, authorities, and big companies saw an opportunity to make a profit while silencing the energy of graffiti writer’s resistance when galleries and museums began to buy art from graffiti artists like Jean-Michel Basquiat and Keith Haring for lots of money. According to Assaf-Zakharov & Schnetgöke, “Commercial firms, such as Sony and Nike, commission graffiti artists to decorate their stores with works that question the culture of consumerism” (Assaf-Zakharov & Schnetgöke, 127). The irony to these commissioned works that “question the culture of consumerism,” is that it's really just ornamentation to attract more customers. 

[Fig. 1] Apple Mural
In more contemporary cases, one might remember the many Apple murals that are hand-painted on the side of building walls. As a result of this new attitude toward graffiti,  “Many cities have launched street art projects, dedicating large public spaces to commissioned or uncommissioned murals and creating ‘legal walls’ for graffiti'' (Assaf-Zakharov & Schnetgöke, 26). This new dedication of the “legal wall” then transformed graffiti into “street art.”
The danger of government funding and support for “street art,” which is often incentivized by a commission, profit, or ornamentation, is that it further silences the voices and urgency of graffiti artists. Take the British artist Banksy as an example. He started out as any other generic graffiti artist who was wanted for many arrests. But as soon as his art began to sell for millions of dollars at auction houses like Christie’s and Sotheby’s, his graffiti tags were then safeguarded often with a glass encasement or entire removal of that wall for resale. As Assaf-Zakharov & Schnetgöke continues, “‘Vandals’ painting over [Banksy’s] works is severely condemned in mass media and punished as criminals, while politicians express deep regret for not having done more to preserve the masterpieces on time” (Assaf-Zakharov & Schnetgöke, 127). So in the eyes of the law, if a graffiti artist can suddenly make a lot of money, they are no longer regarded as a criminal and are then seen as “street artists.”
 In addition, government programs today such as NYC Mural Arts Project, even with great intentions to liven a community through commissioned murals, have silenced the independent voices from the past in the same way as those big companies. The danger for any graffiti artist to be commissioned by the government is that the role of graffiti becomes institutionalized since everyone will accept it as “high art.” For Assaf-Zakharov & Schnetgöke, public space is a place for “public discussion” (Assaf-Zakharov & Schnetgöke, 120). So if an institution commissions a graffiti artist to make a mural about a certain social topic, that artist isn’t the one in control over their own impetus to discuss whatever topic is at hand in public space. This also discourages future graffiti artists from initiating their own projects, because they will now rely on funding and permission from government officials, companies, and museums, which diminishes a stronger form of individuality in public space. Compared to a generic graffiti tag, that is loaded with loose gestures and vitality, street art like the Michael Jackson mural on 11th Street and First Avenue is often demure in composition, highly saturated in color, and fitting into a literal parameter of a wall that loosens a sense of palpable autonomy. So as graffiti began to find its bearings, big companies and government programs have defanged the resistance of those who were marginalized after an economic failure in New York; even though there is still graffiti tagging throughout New York, given the history and institutionalization, current defacement only becomes echoes of a past voice, now stylized as a gesture of those who want to feel fashionable or make a profit.

[Fig.2] Michael Jackson Mural on 11th Street and 1st Avenue
These policies meant to prevent graffiti have highly influenced current attitudes and behaviors on how public spaces are regulated and generally used. Now that graffiti has become “street art,” people and artists feel the need to always wait for permission from an authority to enact anything in public. This is an indication of higher government control of public spaces. For instance, one might notice that many public parks, such as Washington or Tompkins Square Park, are regulated by the presence of police officers, and sometimes the hours of usage. Staeheli and Mitchell explain that public space today is embedded with “the fear of strangers,” where strangers have become threats to public and private property, especially with the wave of anonymous graffiti writers defacing public walls (Staeheli & Mitchell, 539). So many cities use police to regulate that fear of strangers. Staeheli & Mitchell provide an anecdote when they were eating out with a friend in public when a man set up “....a small, rickety shoeshine stand on the sidewalk, hoping to make some money from…passersby[s]” (Staeheli & Mitchell, 1). Soon after, a police officer came over to ask him to leave – apparently because he appeared to be “homeless” and a little bit “scary.” “[The police] would identify people who were loitering and seemed to be homeless or poor, and then monitor their activities” as Staeheli & Mitchell explain (Ibid). Government policing does not target but is meant to “treat everyone as equally suspicious” (Staeheli & Mitchell, 533). Yet, this is not true in Staeheli & Mitchell’s anecdote, and with the story of graffiti artists, who were often profiled as Blacks, Puerto Ricans, or poor Whites. This policing seems out of proportion to the “crime” of a man simply wanting to make a living. Could it be an exercise of power in the same way the authorities were able to consume graffiti’s resistance so easily? These regulations on public space are all based on the beliefs and values of those elites in power.
Similarly, graffiti is regulated based on the belief that it is just an “epidemic” associated with criminal activity, nothing more. The definition of graffiti in law is commonly “referred to on the street, is the etching, painting, covering or otherwise placing a mark upon public or private property, with the intent to damage such property” (Kelly & Bloomberg, 3). This includes “...random markings, declarations of love, graduation events – ‘Class of 2005’ (Ibid). One could argue that there are many other forms of “placing a mark” on property that is not visibly identifiable or immediate at first, like when a public handle or staircase gradually fades and morphs in shape by people touching them every day. Some other subtle examples might include littering, spilling a drink, spitting, putting up wheat-paste advertisements, and so on. Of course, graffiti is an extremely visible and immediate case of placing a mark on a property that requires a special solvent to remove. Bruce Huber’s idea of durability in public space is a “...resistance to change or opposition,” or “ when the federal government retains legal authority to terminate or limit private claims or to allow them to expire” (Huber, 999). In other words, the durability of public space is how much the government can exercise its power in policies. 

[Fig.3] Throw-up that has simply been struck through, although not whitewashed. This example demonstrates that extinguishing graffiti images is often far more important than the overall look of the property.

Perhaps a better example of the law’s absurdity regarding graffiti is in Figure 3. One sees that the extinguishment of graffiti is far more important than the overall appearance of the property. Government authorities are operating on a double standard of being able to “place a mark” with paint without any legal repercussions. So could this just be the power that the elite is exercising as a way to silence those who want to speak up?
In a 2005 short excerpt from Piece by Piece by Nic Hill, many authorities such as Mohammed Nuru from the San Francisco Department of Public Works and law attorney Dennis Herrera imply that exercise of power. They both described graffiti as an “attractive nuisance,” and that it is “...hurting a lot of people (Hill). They're making the city look terrible. If they want places to do art or canvases to practice on there are many other avenues. If we don't battle this right now, then we're going to allow this to continue and this is what it could get to” (Hill, 04:30). They say “attractive nuisance” in the sense that graffiti attracts and causes many other crimes, such as drug-trafficking and gang violence. A current tagger in the excerpt responds, “Graffiti is not a very serious crime but it's a very immediate and visual crime. It's so easy to point the finger at graffiti because everybody sees it” (Hill, 03:22). The argument that graffiti causes problems such as gang violence seems flawed because of how purely that causal relationship is made out to be. So who is not to say that there are other factors involved that cause other crimes to happen that we can’t visually see, such as government planned shrinkage in 1975, redlining, and job discrimination? 
Carlos Romero was made the first graffiti tagging victim to serve time in jail, at least in San Francisco, pay a fine of $20,000, be banned from possessing any materials for mark-making, and obey a personal curfew. Authorities such as Mohammed Nuru who were surveilling Romero felt as if these extreme measures of punishment could prevent future generations from straying away from graffiti. Yet, this is not the case. Romero explains in the excerpt, “They catch one person. It dies down. Graffiti comes back and the wave just keeps coming and coming and coming. What they think is, like, I'm the voice for graffiti, right? That's what I'm thinking. And whatever I say, it's not going to affect the graf scene. It's not going to stop them” (Hill, 05:42). Romero’s response that graffiti keeps coming back even with laws implies that there is something else, like a deeper rooted problem, that is happening but not seen by authorities. His punishment is so clearly blown out of scale to his individual crime, that it doesn’t even seem like these policies are trying to prevent future crimes from happening any more. Rather, they are just meant to excessively punish and almost silence those graffiti writers further, such as setting up a curfew and banning Romero from using any writing materials.
As David Harvey exhorts, “The right to the city is far more than the individual liberty to access urban resources: it is a right to change ourselves by changing the city” (Shepard & Gregory, 143). We can learn from graffiti’s history, that the way to feel liberated in a city is being able to have a say in how it operates and even looks. Graffiti is a form of individual expression and resistance against the rising profit-driven climate of a post-industrial city. The law makes us perceive graffiti as purely criminal, making us forget about why it’s even there in the first place. For many writers, graffiti functions as a release mechanism to prove to themselves that they still matter and exist in a city that has marginalized them; this is why graffiti is far more of an aftermath of a social situation, rather than a prime cause of crimes. 

MLA Citation
Assaf-Zakharov, Katya; Schnetgöke, Tim. Reading the Illegible: Can Law Understand Graffiti? Connecticut Law Review, [s. l.], v. 53, n. 1, p. 117–153, 2021: Accessed on: 21 Feb., 2022.

Hill, Nic. Piece by Piece. Underdog Pictures, 2005.

Huber, Bruce. The Durability of Private Claims to Public Property. Georgetown Law Journal. 2014;102(4):991-1043. Accessed on: February 21, 2022. 

Kelly, Raymond K; Bloomberg, Mayor Michael R. Combating Graffiti: Reclaiming the Public Spaces of New York. Police Department City of New York, Accessed on: 15 April, 2022.

Shepard, Benjamin Heim; Gregory, Smithsimon. The Beach Beneath the Streets: Contesting New York City's Public Spaces. State University of New York Press, 2011. ProQuest Ebook Central,

Silver, Tony. Style Wars. Public Art Films, PBS, 1983.

Staeheli, Lynn A.; Mitchell, Don. “Don’t Talk with Strangers”: Regulating Property, Purifying the Public. Griffith Law Review, [s. l.], v. 17, n. 2, p. 531–545, 2008. DOI 10.1080/10383623.2008.10854623: Accessed on: 21 Feb. 2022.

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