Bloomington gives $500 fine after activist writes “VOTE” on street, cites code on defacing property

Area resident Thomas Westgård has been fined $500 by Bloomington after writing “VOTE” on a city street.

Westgård sent The B Square a photo of the letter that he reported receiving from the city on Friday.

The letter, signed by Bloomington public works director Adam Wason, states: “On January 4, 2023, at the intersection of Madison and 7th Street in Bloomington, you spray-painted the word ‘VOTE’ in the street.”

The letter continues: “In accordance with BMC Section 1.01.130, you are being assessed a fine of $500 for the violation.”

As reported by The B Square, on the morning of Jan. 4, 2023 Westgård dolloped some purple compound on the pavement to spell out the word “VOTE” at the intersection of Madison and 7th streets.

Writing “VOTE” on the street surface was an effort by Westgård to get arrested for violating the city’s new policy on the installation of private art in the public right-of-way. Westgård wanted to draw attention to what he says is a history of viewpoint discrimination by Bloomington, when it comes to regulating speech.

The city’s new policy on private art installations in the public right-of-way prohibits permanent art that contains any words, letters, or universally recognized symbols. Westgård chose the word “VOTE” for his protest to fit the location, which was in front of Monroe County’s Election Central building.

According to the city’s letter, the avenue of appeal available to Westgård is to take the matter to the Monroe County circuit court. Westgård told The B Square: “I will absolutely appeal.”

One issue that could come up for any appeal is the city’s factual claim that Westgård “spray-painted” the word “VOTE” on the street. The purple compound that he mixed up in a plastic cup was chalk-based. He glopped it onto the asphalt in the basic shape of the letters, then used a piece of cardboard to spread it out.

Based on the appearance of pavement on the day after Westgård wrote on it,  it appears that someone tried to slosh water over the letters. A purple smear was left—but it was not recognizable as text. Westgård told The B Square it was not him who made an attempt to wash away the word.

On Friday, after the Bloomington area saw around three-quarters of an inch of rain the previous day, there was no trace of purple on the pavement.

The specific local law that the city says Westgård violated is BMC 14.36.050:

14.36.050 – Defacing or destroying city property.
It is unlawful for any person to remove, interfere or meddle with any grade stakes, fences, lights or other guards placed by the city, its agents or employees, or required by ordinance to be placed in or about the streets, alleys and public places of the city, or to destroy or deface, mutilate, change, modify, injure or remove, or to in any manner interfere or meddle with street signs placed by the city on its streets, alleys and public places, or to destroy, deface, mutilate, remove or injure any seats, benches, stands, signs, monuments or other property located in the streets or alleys, parks or buildings or other public places of the city.

The amount of the fine that the city has imposed is described in a different chapter, which includes a kind of catchall for fine amounts: BMC 1.01.030. Under that chapter the city could have fined  Westgård up to $2,500.

8 thoughts on “Bloomington gives $500 fine after activist writes “VOTE” on street, cites code on defacing property

  1. Where does this section address the street surface itself? There are plenty of objects listed, but the street surface? Did he really violate this section?

    1. “other property located in the streets or alleys, parks or buildings or other public places of the city.”

      The surface of the street is property located in the street

      1. Not so sure about that, since not specifically included. Can’t wait for the appeal. Why wasn’t he charged with violating the new public art policy?

    2. Even if the street surface were analyzed as somehow included in the set of objects in play, the question becomes whether is is possible for the street surface to be “defaced.” I think the answer is no, at least not in that location.

      Here’s the Black’s Law Dictionary definition of “deface”:

      To mar or destroy the face (that is, the physical appearance of written or inscribed characters as expressive of a definite meaning) of a written instrument, signature, inscription, etc., by obliteration, erasure, cancellation, or superinscription, so as to render it illegible or unrecognizable

      So the legal notion of “deface” is tied to the idea that there’s some written communication connected to any object that might potentially be defaced. At the location where the word “VOTE” was written, there’s no pavement markings like “SLOW” or turn arrows, or any other written communication that the word “VOTE” obscured or rendered unrecognizable.

      1. Ten years or so ago the city rebuilt and reconfigured the street in front of my house. They completely removed all pavement and sidewalks and regraded so that instead of a crown in the middle of the street stormwater flows to only one side. After they removed the original pavement there was a right of way but there was no street. Or perhaps it was an unpaved street. Either way, adding property (concrete, asphalt and various grades of crushed stone) either created the street or converted it to a paved street.

        The legal definition of deface is much more specific than I would have guessed and seems inapplicable in this context.

        The bigger question is why are we being subjected to this? Westgard used temporary materials. The new procedure for permanent art would not apply in his case.

        It is well established that free speech is not an infinite right. You can’t yell “Fire” in a crowded theatre if there is no fire. Free speech zones such as Information Alley at the Farmer’s Market conform with the law, though I find this difficult to accept in situations like political conventions where the zone is located far from the event.

        But if I were to violate the convention’s free speech zone in isolation and get arrested I would be tilting at windmills. Civil disobedience is effective only as a coordinated effort by a dedicated group of individuals. Rosa Parks was neither the only nor the first person to refuse to give up her seat.

        But if no benefit has been derived from Westgard’s protest, no real harm seems to have been done, either. Hopefully, the city’s citation is just a shot across the bow and Westgard doesn’t incur any cost for his quixotic efforts. And maybe Sancho can report on other things.

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