Writing on the wall: What the chalkboard will really do

Besides real estate and the latest DMB disc, one hot topic in town is provoking heated debate: the community chalkboard and monument to free speech. (Or as it has been formally titled, Charlottesville's Community Chalkboard and Podium: a monument to the First Amendment.) Paving its way are eight years of questions about what it will really do for the community– and to the community.

Since it was proposed back in 1997, people have asked whether the wall will encourage public dialogue– or will do more harm than good. Could inflammatory chalkings incite violence? Or will its ever-changing spew of profanity turn into just another pile of rants that people will learn to ignore?

Four years ago, the Charlottesville City Council threw caution to the wind when it voted 3-1 to approve the construction of the 55-foot-long, seven-foot-high blackboard on the east end of the Downtown Mall. Although most in attendance at the February 2001 public hearing supported the idea of a "free-speech" wall, council members had mixed feelings.

"I dread some of the consequences of this monument," Meredith Richards said in a Washington Post story following the decision. "The many predictions of the negative aspects of its use are probably going to come to pass. Let's hope our faith in our citizens and their ability to use the wall responsibly is upheld."

Today's Democratic candidate for the 57th district House seat, David J. Toscano, citing design and location concerns, cast the lone vote against the wall. Kevin Lynch, who's still on Council, abstained. "The devil's really in the details," the Post quoted Lynch.

Now that the wall is finally becoming a reality (scheduled for completion sometime this fall), it appears to be raising as many questions as cinder blocks.

For example, will the City reserve the right to shut down the wall or limit certain kinds of speech? Will private renters of the amphitheater space be able to restrict free speech around the wall? Will the city prosecute graffiti artists who express themselves in chalk? Will the wall be monitored, and if so, by whom? Will gratuitous profanity, pick-up lines, and petty complaints about traffic congestion and road-hogging bicyclists fill the space, or will venerable issues of American political protest and town meetings be memorialized– even momentarily?

It depends on who you ask.

The wall has plenty of friends in high places. Donors include local celebrities such as Sissy Spacek, Rita Dove, and Rita Mae Brown. In April, wall backers announced a $125,000 contribution from part-time Albemarle billionaire philanthropist John Kluge.

"In theory, the chalkboard for free speech is a great idea," writes local businessman and Republican leader Tyler Sewell on a logal blog. "In practice, it will be an ugly eyesore covered with profanity and an ugly embarrassment for the City."

By contrast, Democrat and City Councilor Blake Caravati, who was mayor when the wall was approved four years ago, doesn't miss a beat when asked to peer into his crystal ball.

"I think the wall will be an absolute success," says Caravati. "I was a big fan of the free speech wall from the beginning."

However, even the enthusiastic Caravati had mixed feelings at one time. According to a transcript of the February 2001 public hearing, Caravati shared Toscano's worries about the location (as well as about spray painting). He later joined the majority vote to approve it.

Caravati bristles at the prospect that profanity might prohibit schools from visiting. "I don't know the answer to that question. Well, yes I do. I'm not a cynic. There's so much cynicism in political dialogue," he says. "I'm not afraid of the possibility that profanity or slurs will appear on the wall, because that's just a human thing. That's what free speech is– free."

The wall is jointly sponsored by the City, which is donating– er, renting– the space, and the Thomas Jefferson Center for the Protection of Free Expression, a sort of local think-tank for free speech issues.

Designed by Charlottesville architects Pete O'Shea and Robert Winstead, the structure is finally rising from the dirt in front of City Hall– right alongside the amphitheater leased to music impresario Coran Capshaw.

Asked if the city will reserve the right to "shut down" the wall during certain events or for specific reasons, Caravati admits there might be such circumstances, but he says they would be temporary.

"The citizens of Charlottesville are responsible for the quality of discourse on the wall, and for protecting the wall," Caravati says.

That may be true, but it was City Council who thrust that responsibility upon residents without fully addressing many of the questions it raises.

For example, Charlottesville resident Kevin Cox, in a post on local political blogger George Loper's website, wonders if Capshaw will be able to place restrictions on free speech on the wall.

"That indeed is a complex legal issue," admits J. Joshua Wheeler, associate director of the Jefferson Center, "but it applies to all publicly owned property and exists whether or not the monument is built."

To the chagrin of many free-speech zealots, privately owned shopping centers like Barracks Road, Fashion Square, and Shopper's World have addressed this issue by adopting the constitutionally accepted "viewpoint neutral" practice of banning free speech altogether.

On May 7, in a widely reported incident that became a major campaign topic in the race to fill the state House seat of retiring delegate Mitch Van Yahres, candidate Rich Collins was arrested for campaigning in the Shopper's World parking lot. Defending his right to have the 70-year-old former UVA professor arrested, Chuck Lebo, president of the company that manages Shopper's World, told the Hook at the time, "We absolutely allow none, including the Boy Scouts."

A detractor might decide to chalk an impromptu concert review or an unkind word or two about Dave Matthews or– egads!– Capshaw himself. Might Capshaw, who manages the Dave Matthews Band, impose some restrictions on the monument?

Wheeler thinks that's unlikely because the area in front of City Hall– formerly the site of popcorn, pizza, and beer vendors during Fridays After 5 shows– will no longer be needed for concession stands and thus will not be officially part of Capshaw's domain. Because the new amphitheater will have its own "internal" concession area, Capshaw's lease for the amphitheater does not include the area in front of City Hall nor the space on which the monument is to be located, Wheeler says.

If someone subleasing the amphitheater from Capshaw wanted to close off the area in front of City Hall for some reason, Wheeler explains, the tenant, the city, and the Jefferson Center would have to work out a cooperative agreement as to how, and for how long, the closing could take place.

Whether the city itself will be able to shut down the wall during certain events or for specific reasons is another matter.

"That depends on the event or the reason," Wheeler says. "Under U.S. Supreme Court precedent, local governments may, consistent with the First Amendment, place 'time, place, and manner' regulations on expression if there is a valid reason for doing so.

"The key to evaluating the constitutionality of such regulations," he continues, "is to determine if they are content-neutral. Is the regulation aimed at controlling what is said as opposed to where or how it is said?"

As an example, Wheeler notes that citizens will be prohibited from writing on the wall with anything but chalk. "Because this restriction applies to everybody," he says, "and does not affect what is being said, but only how it's said, it is content-neutral."

But what about the possibility of disruptive gatherings or speechmaking at the wall? Will neo-Nazis, white supremacists, or other extremists be able to take the podium and express their views?

"Those groups already have the right to express themselves on the Downtown Mall," says Wheeler. "One's legal right of free speech at the east end of the downtown mall will be no different after the monument is completed than it was before."

As Rutherford Institute president and constitutional lawyer John W. Whitehead pointed out during the original public forum in February 2001, "Free speech applies also to what we despise."

Wheeler, however, explains that there are limitations to free speech. "It needs to be stressed that the U.S. Supreme Court has determined that certain categories of speech do not fall under the First Amendment's protection," he says. "Among those are threats of violence, expression both intended and likely to incite others to commit imminent illegal acts, and speech likely to provoke an immediate violent response from the person to whom it is directed. " That's the old "crying fire in a crowded theater" scenario.

"Anyone engaging in those kinds of expression at the monument or elsewhere could be charged and prosecuted," he adds.

Wheeler concedes that the issue of profanity on the wall is a legitimate concern. "But it's one we feel is far worse in the abstract than it will be in reality," he says.

Current Mayor David Brown isn't as enthusiastically gung-ho about the wall as Caravati and Wheeler, but he's not writing it off, either.

"I'm cautiously optimistic it will be a good thing for the city," Brown says. "I understand the concerns about profanity on the wall, but I don't think it's going to be a magnet for bad behavior."

Brown admits to high hopes for the monument. "I'm hoping the wall will be full of wit and comment and that people walking by will be enlightened and entertained by it," he says.

Others consider that wishful thinking.

"While I think liberals need, and are entitled to, as much free speech as anyone else," quips Terri Di Cintio on Loper's blog, "for the life of me, I cannot figure out why anyone thinks this chalkboard is a good idea. Besides the obvious concern that it will be regularly filled with profanity, threats and inane scribblings, it strikes me as a gigantic and costly eyesore."

Waldo Jaquith, who worked with the Jefferson Center to create an online version, the "Virtual Community Chalkboard"– supposedly a model of the real-life item– foresees the wall becoming a "physical manifestation of blog community culture."

Ironically, Jaquith also likens the wall to a return to the kind of public discourse common in town squares in the 18th and 19th centuries, long before daily newspaper publishers and radio and television producers began deciding what was important. Jaquith mentions the giant chalkboard in the bathroom at the Mudhouse on the Downtown Mall as an example.

As is common with web blogs, Jaquith has noticed that the virtual chalkboard he created at chalkboard.tjcenter.org, essentially a blank slate, has evolved its own culture, with posters inventing their own rules for organizing the dialogue and using the "erase" and "edit" functions in creative ways.

That ability to alter or erase what's written is one of the controversial aspects of both the virtual and the real-life boards. In fact, one of the main complaints that posters on the virtual chalkboard have had is about statements being erased or altered.

However, the TJ Center's Wheeler thinks the "freedom to erase" will be used in significantly different way on the chalkboard downtown.

"Users of the virtual chalkboard can erase with complete anonymity and, as a result, can do so with little reflection and few inhibitions," he says. "By contrast, those erasing on the actual chalkboard will do so in the public eye. Hopefully, that scrutiny will cause them to reflect more fully before deciding to erase."

Wheeler concedes that the wall's visibility could have the opposite effect. "For example," he points out, "adults who feel that something on the wall is inappropriate for minors may be more inclined to erase in order to prevent children from seeing it."

What about pranksters? One example involved changes to a recent post on the virtual chalkboard from a Washington Post reporter.

"I'm writing a story about people with unusual pets," the "edited" blog entry read. "I'm particularly interested in reptiles." In a subsequent story in the Post, the reporter wrote that her original query had had nothing to do with reptiles.

"The erase feature reduces this chalkboard to nothing," an angry poster wrote. "It's simply not practical to spend any time making a point, because inevitably it will be erased within minutes."

Naturally, when the Post story came out, it addressed the issue. "If you commit such an act, it's ultimately up to an individual's conscience and choice," the reporter quoted Wheeler as saying. "But we believe the most effective way to encourage people to choose tolerance is not to force it upon them."

Posters on the site, like the citizens who will eventually use the actual chalkboard downtown, are also free to choose their own topics.

"What is your definition of cool? Are you a cool, hot guy, looking for a pretty, hot girl? That kind of cool?" read a recent post on the virtual chalkboard, which has since been erased. "Or are you a nerdy guy, looking for a nerdy girl with glasses, kind of cool? Could you be one of the typical UVA frat boy type cool guys, hmmm? Just curious."

Just curious indeed. Now that Charlottesville's unique experiment in free speech is about to become a reality, it's anyone's guess what that reality will be.

So, what's your definition of cool?

Just curious.

The monument rises in front of City Hall

Monument designers Peter O'Shea and Robert B. Winstead hope their wall will energize people to express themselves.