Should the defacement of the ads be protected under the First Amendment?

JON CARROLL
- Jon Carroll
Tuesday, January 17, 2006

So here's a thing. Something called the Respect Life Ministry of the Oakland Diocese of the Roman Catholic Church has paid $43,200 for anti-abortion ads on BART. The ads say "9 Months. The amount of time the Supreme Court says it's legal to have an abortion. Have we gone too far?" Let us leave aside for a moment the fact that the Supreme Court never said anything like that and that this ad is merely more pandering to the whole "activist judges" trope of the right-wing Christians. Let's note it, but let's move on.

A lot of these ads have been defaced in various ways. One might expect that, given the general political mood of the Bay Area and, for that matter, the aggressively populist nature of the public transportation experience. If you can talk on your cell phone about your colon procedure in a carful of strangers, you're probably capable of doing something rude to a political poster.

Let me say that I totally support the right of the Catholic Church to post anti-abortion or indeed anti-masturbation ads anywhere it wants to. It's that old First Amendment so many of us depend on for our livelihood. The question is: Should the defacement of the ads also be protected under the First Amendment?

After all, the defacement was clearly political -- sometimes it took the form of mini-essays scrawled across the ad. It's not just random vandalism. If there is a marketplace of ideas, this is what it looks like. Of course, defacing property is a misdemeanor, and in theory people caught doing it could be handed a citation or, should they get belligerent, even be carted off to a facility of incarceration.

Most vandalism does not have a political component, unless you consider it all to be a cry from the underclass against the oppression of the plutocrats. (I could make that argument, but not now.) In this case, however, the only difference between the makers of the ad and the defacers of the ad is $43,200. How do you level an economically tilted playing field? By claiming the right to use the same channels of information transmission. That's what the FCC fairness doctrine, which RIP, was all about.

So, politically motivated defacement: vandalism or free speech? Curiously, I have had to make that decision in real life, and also in Sydney, Australia. The first time we were there, sometime in the 1980s, I was introduced to a member of a group called BUGA-UP (Billboard-Using Graffitists Against Unhealthy Promotions). That tortured acronym was designed to suggest "bugger up," which is a lot ruder phrase down under than it is up over. It means, basically, to disrupt. It means other things too, but those need not concern us.

BUGA-UP was a group of serious-minded young people who were opposed to the advertising of cigarettes, which they believed to be dangerous. (This is back when that viewpoint was controversial.) Their method was to alter billboards. Not just deface them, but change slogans, alter the look of cigarette packs and use the sophisticated graphics of cigarette companies against them. Further, they sought out hard-to-reach billboards, so their changes would be harder to erase.

The question was: Did I want to come on a nighttime excursion? I was an American citizen in Australia, and what we were going to do involved climbing over several high fences and spending a fair amount of time -- art is hard -- on very private property. I could be deported. Today I might think harder because if I were caught I might get on some double-secret no-fly list or tossed into an Egyptian hellhole with other "terrorists," including some non-quotation-mark terrorists. But that was then, so I said yes.

We stood on a red bus-stop bench and hoisted ourselves over the first fence. We worked under the soft darkness of a new moon. We put our spray cans in holsters and we climbed the fences. Our target was a Marlboro billboard that faced morning commuters on a Sydney rail line. It was about 12 yards from the tracks. I had already confessed to my complete lack of graphic ability, so I was given a corner of the billboard and told to do anything I wanted.

We finished. My heart was pounding. We climbed back over the fences. I was expecting to find police cars, but the street was quiet. We shook hands and parted. A few days later, someone gave me a copy of the BUGA-UP official photograph of the billboard. There, in the lower right-hand corner, was my skull-and-crossbones. The skull was smiling more than skulls do, but I was still proud. At least you could tell what it was.

I have to say that it all felt pretty good. I am remaining officially neutral on the current question, but I do understand the temptation. Indeed, I succumbed to the temptation, but that was in another country and besides, the bench was red.


As unlikely as it sounds, this is all true, with the exception of one color. And the issue is likely to be with us for a while, given everything.

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