By Guy Page

Whether you call it free speech or hate speech, art or just plain ugly, graffiti will be on the table Burlington City Council tonight. 

Two versions of a proposed anti-graffiti ordinance – both drafted in late October and then tabled at a Nov. 4 meeting – are on the agenda. If either draft is approved, voters will decide at City Meeting in March if the ordinance will proceed to the Legislature for final ratification. 

Both versions create confidential reporting of the proliferating graffiti, most apparent but not restricted to downtown Burlington. A controversial clause gives the self-perceived victim of the graffiti – whether an individual or a group of people – the right to sue for damages in court. If the judge finds for the plaintiff, he may impose a $100 fine. 

Supporters say people need to be legally protected from hate speech. Critics say free speech itself must be protected. 

The clause below appears in this draft. It is crossed out in this draft. 

Private right of action. As authorized by section 54 of the City’s Charter, any member of the

public who suffers damages arising from any violation of any provision of this code is hereby authorized to bring a private right of action to recover such damages. 

In case of anything declared by this code to be a civil or criminal offense done maliciously and with the intent to intimidate or harass another person because of, or in any manner reasonably related to, associated with, or directed toward, the person’s race, color,  religion, ancestry, national origin, gender, sexual orientation, gender expression or identity, mental, physical, or sensory disability, service in the U.S. Armed Forces or the National Guard, or association with or support for individuals based on any of the foregoing classifications, such violation shall be presumed to cause the person against whom the violation was directed damages in the amount of $100.00 or any greater amount subject to proof. 

As used in this paragraph, the term “person” may refer to a specific person or more generally to any person within a classification of persons who the individual committing the offense intended to intimidate or harass. 

The ordinance states that the laintiff (the accuser bringing the suit) only needs to win to recover legal costs. However, the accused defendant must win AND convince the judge the complaint was wholly without merit and brought with bad faith. 

“A prevailing plaintiff shall be entitled to reasonable attorneys’ fees and costs…. The  defendant (the person accused of the graffiti) shall be entitled to recover reasonable attorneys’ fees and costs if the court finds that the action was wholly without merit and brought with a bad faith intent to cause unwarranted annoyance.”

Both versions include the creation of a new citizen reporting system: 

‘To encourage and facilitate enforcement, the city shall maintain and advertise an electronic mail address or similar electronic means by which members of the public may provide photographs, video footage, or other information to the police department about violations of this section and the identities of responsible parties. Such system shall entail direct electronic communication with the police department and not the posting of information online and readily available to the public.”