California Gov apologizes for graffiti removal

This story out of California cracked me up: Gov. Arnold Schwarzenegger felt compelled to apologize because the state transportation department painted over years-old, patriotically themed graffiti. Fox News' coverage gave the pertinent details:

Governor Schwarzenegger issued an apology Friday after California residents are up in arms that a flag mural — paying homage to victims of the 9/11 terrorist attacks — was painted over after the state ruled it was graffiti.

"It has come to my attention that Caltrans has recently removed a patriotic and meaningful flag mural that was painted on the side of Interstate 680 following the tragic events of 9-11. To do so only days before we celebrate our independence and reflect on the freedoms we are lucky enough to enjoy in America is unconscionable. I extend my apologies to the artists whose mural inspired drivers along 680 for over eight and a half years," the governor said in a statement.

His remarks come after state transportation workers on Thursday turned the 35-foot hillside mural on Interstate 680 in Silicon Valley back into a gray slab of concrete, KTVU-TV reported. The explanation? It simply had been put on a list for graffiti remove, one official said.

But the landmark had been a favorite among residents and motorists. "It just made me feel really patriotic just seeing it every day," motorcyclist Dave Freely told KTVU-TV.

The artist behind the mural, Eric Noda, was among those confused as to why the state suddenly deemed the flag graffiti and motioned to take it down. "It should not be classified as graffiti. I mean it was a well-done flag and I felt like it's part of America," said Noda said.

But the state apparently wasn't aware until now that the eight-year-old mural was on the state's highway right-of-way. Otherwise, it would have be removed a lot sooner.

The flag muralists vow to repaint the mural in time for the tenth anniversary of the terrorist attacks. But the state says they will have to go through an application process for permission to create "transportation art."

This situation is rife with irony. For starters, the mural clearly was graff. It was art painted on public property without permission, which is by definition "graffiti." The only reason the governor felt compelled to criticize its removal is that the art played on patriotic instead of more common anti-authoritarian themes, but the First Amendment protects artists from the government restricting their work based on content. Regulations on graffiti restrict the time, place and manner of expression without respect to content per se, so in that sense Caltrans was absolutely right to treat it just like any other graff they scrub off the freeway wall. How remarkable is it, then, for the Governor to declare that equal enforcement of the statutes in this case was "unconscionable"? Will the Governator be similarly generous toward the next artist who paints something more controversial than a flag? One doubts it.

The question is often posed: Is graffiti art or vandalism? This example shows that's a purely subjective distinction, and one that doesn't necessarily even hinge on the underlying property rights questions. All too frequently, the seemingly contradictory answer is "both."

UPDATE: The saga gets even stranger. Two different men repainted the flag and released their names to the press. Bizarrely, the news report I read said that the flag's repainting proved "that good, old-fashioned American ingenuity and the can-do spirit are not dead." Of course, isn't the same true of every tagger who revisits a crime scene after authorities buff it? Days earlier, Caltrans had said "We don't allow graffiti on state property ... No matter what kind of graffiti it is, we don't show favoritism." So will these two fellows face prosecution? Should they?