Editor:

    I recently picked up a pretty funny book called
Unusually Stupid Americans, and I noticed that a number of the stories
in the book are about obviously innocent people trapped by shortsighted
local laws or company policies. I’m afraid South Portland may be headed
for the next edition.

    The new anti-graffiti ordinance is so poorly written
that not only might it make us a laughingstock, but it might cost our
city dearly in court costs and misplaced police time if a few
overzealous bureaucrats or police officers enforce the ordinance as
written.

    A 1971 Supreme Court decision stated the problem
pretty clearly:  “This Court has long held that laws so vague that
a person of common understanding cannot know what is forbidden are
unconstitutional on their face.”

    Graffiti is a serious problem, and it’s clear that
businesses want better deterrence than is provided by existing state
and local laws, which do make graffiti illegal. But we can’t run scared
and cast a broad net that catches normal law-abiding citizens, or makes
them afraid of being caught for nothing.

    There are many instances of poor writing in the
ordinance. One is a provision specifically presuming kids to be guilty
until proven innocent if they possess a “graffiti implement” in or near
a school--an inversion of our normal legal due process.

    The worst part of the new ordinance is its strange
definition of “graffiti implement.” In addition to spray paint and
broad-tipped markers, the ordinance states that any “brush or any other
device capable of scarring or leaving a visible mark on any natural or
manmade surface” is considered a “graffiti implement.”

    That includes pens and pencils, rakes (lawns are
natural surfaces), anything with a metal edge that can scratch (such as
car keys), hairbrushes, artist’s brushes, hammers, screwdrivers, bike
tires, golf clubs, soccer cleats...you get the picture.

    And don’t think this is just about kids. The
ordinance considers anyone of any age guilty of the intent to attempt
graffiti if they are found carrying any of these “graffiti implements”
in “any public facility, park, playground, swimming pool, recreational
facility, or other public building, structure, premises or vehicle
without the City’s permission.” For example, if you are caught walking
through a park or into City Hall carrying a pen, without permission of
the City, you are deemed guilty of the intent to commit a crime under
the anti-graffiti ordinance.

    In addition, any person or business is guilty and
liable to a fine if they give or sell these “graffiti implements” to
any person under 18 years old without written permission of a parent.
Since it’s impossible to guess exactly what a “graffiti implement” is,
the safest way for parents to avoid becoming a test court case for this
ordinance might be to forbid kids to buy anything from a store unless
it’s soft, or has no ink or paint in it. Maybe the Maine Mall should
card customers to avoid selling to anyone under 18, since most items
sold there could be defined as graffiti implements under the ordinance.

It amazes me that this ordinance was passed unanimously by the City
Council. I can think of a few bad reasons why the Council let it go
through or felt unable to vote “no”, but I can’t think of any
explanation that puts South Portland in a good light.

    Hopefully the Council will step up to the plate and
repeal the ordinance immediately, before any problems come up, and then
make some effort to craft an ordinance that handles the graffiti
problem while also doing right by the public. There’s no reason we
can’t all be on the same page on this issue.

Edward Pearlman

South Portland