I'm trying to determine if chalking a sidewalk or road is illegal, because deep inside my soul, I'm actually a six year old, and would derive no greater pleasure in life than from rolling around on concrete in a pile of chalk and terrible drawings.

It looks like the answer isn't exactly clear, either. Some places, it seems, it might be illegal as vandalism; some places, it seems it's totally fine, and some places, it seems, are contingent upon enforcement.

Please help me, Law Stack Exchange. Is it safe to unchain my inner six year old?

  • For roads in particular it could prove dangerous, so I wouldn't be surprised at all if you get into trouble. – Guido Oct 14 at 15:39

I have bad news. California's vandalism law prohibits maliciously:

  • defacing property with graffiti
  • defacing property with inscribed material
  • damaging property
  • destroying property

Chalking the sidewalk probably doesn't sound very malicious, but maliciousness includes “an intent to do a wrongful act, established either by proof or presumption of law.” So the questions is whether you intended to do a wrongful act -- meaning that you intended to do the act, which happens to be wrongful, not that you intended to act wrongfully. So unless you drew on the sidewalk accidentally, the malicious-intent requirement isn't going to help you.

So then you have to ask if your conduct is described by the statute. In Mackinney v. Nielsen, the Ninth Circuit said that sidewalk chalking did not violate the law, but California has since amended the law to add the "deface with graffiti" language. I haven't seen any chalk cases since then, but another case, In re Nicholas Y., from the Second District, dealt with someone who used a marker on a window. He argued that it could be easily erased, but the court said it was still vandalism because:

  • it "mars the surface with graffiti which must be removed in order to restore the original condition"
  • the definition of "deface" "does not incorporate an element of permanence"
  • "marring of the surface is no less a defacement because it is more easily removed."

Given that language, I'd argue that the vandalism statute includes sidewalk chalking.

But one important element here is that most sidewalks are owned or controlled by the government, so any effort to restrict "expressive conduct such as writing with chalk" (Guilliford v. Pierce County) expressive activity" there must comply with the First Amendment.

The government has varying degrees of latitude on the restrictions it can impose, depending on the character of the space involved. So in a courtroom, whose function is incompatible with free-wheeling public debate, a judge can set quite a few rules about how people may speak. But sidewalks are considered a "public forum," where the government's ability to regulate speech is a lot more limited.

So how does the First Amendment apply?

There's a D.C. Circuit case (Mahoney v. Doe) dealing with abortion protesters who wanted to use chalk on the streets and sidewalks outside the White House. Police told them they would be arrested for violating D.C.'s defacement statute, so they brought a First Amendment challenge. The court upheld the law, saying that it satisfied all three prongs of the public-forum test:

  1. The law must be content neutral, meaning that it prohibits conduct without reference to what is being said. The Court said the defacement statute was content neutral because people could be prosecuted regardless of what they wrote or drew.
  2. The law must be narrowly tailored, meaning that it serves a significant governmental interest and does not restrict more speech than is necessary to achieve that goal. The Court said the defacement statute was narrowly tailored because it served the government's interest in maintaining the aesthetic appeal of the area in front of the White House and didn't restrict any speech that does not deface public property.
  3. The law must leave open ample alternatives for communication, meaning that even if you can't express yourself in the way restricted, you still have meaningful opportunities to express yourself. The Court said the defacement statute law allowed adequate alternatives for communication because the group could still congregate, march, speak, hold signs, and hand out leaflets.

There's an interesting wrinkle there in terms of whether the interest in aesthetics is heightened because we're talking about the White House, but generally speaking, aesthetic concerns can still justify speech restrictions.

So the bad news is that unchaining your inner six-year-old may subject you to criminal liability. That leaves the question of whether you want to unleash your inner teenager and do it anyway. This could help put you in a frame of mind for making the decision.

California Penal Code 594 PC

Penal Code 594 PC, California's vandalism and graffiti law, prohibits maliciously doing any of the following things to someone else's property:

  • Defacing it with graffiti or other written material,
  • Damaging it, or
  • Destroying it

So yes it could be illegal.

As with most things whether or not the police decide to pursue charges will depend on who's property you wrote on, what you wrote or drew, and how the officer feels at that moment.

  • 2
    I suppose applying grass seed or fertilizer in the pattern of a word would be item 1? In college we discussed but never executed doing this as a prank to the fraternity across the street. – user662852 Sep 21 '16 at 22:32
  • Would writing a message in chalk on a public sidewalk be illegal as well? – rii Sep 27 '17 at 5:01
  • 1
    @rii - If it is not yours technically yes. If the message is not harassing though I doubt any police officer is going to do anything more that give a warning about it. – Chad Sep 27 '17 at 14:13
  • leginfo.legislature.ca.gov/faces/… might be a better link to the referenced law as it contains the full text and is an official source? – Jason Aller Feb 16 at 19:38
  • There is obviously a requirement for malice, and mere drawings do not immediately rise to that level. For example, a drawing of flowers to brighten the day for pedestrians or a group of people who need somewhere to draw their handball court. – Nij Feb 16 at 19:57

Penal Code 594 PC, California's vandalism and graffiti law, prohibits maliciously doing...

Playing hopscotch on the sidewalk is not "maliciously doing"... Spray painting on someone's house is though...

  • You add an interesting aspect with the consideration of intent and the determination if the chalking is malicious in nature. I read the question more broadly than just playing hopscotch, as it mentions drawings. – Jason Aller Feb 16 at 19:48
  • 1
    This is a comment on the existing answer, not an answer itself. – Nij Feb 16 at 19:57

some California precident exists:

https://www.sandiegoreader.com/weblogs/news-ticker/2013/jul/01/just-how-good-were-those-plea-offers-in-the-case-o/

much better link:

https://inpropriapersona.com/news/2013/chalk-vandalism/

  • 1
    Link only answers depend on those links staying up. It is usually helpful to summarize the points that the links are making. – Jason Aller Feb 17 at 17:48

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