Judging Art: Legal Discretion, Graffiti, and the Criminalization of Creative Expression

• In Event: Cultural Geographies of Space and Crime

Abstract

Street art and graffiti exist in a legal gray area, where their classification as art or vandalism is often left to judicial interpretation. The absence of clear legal definitions regarding what constitutes artistic expression in public space results in highly discretionary judicial rulings, leading to inconsistent criminalization practices. This paper examines how courts in the United States and Europe navigate the legal status of graffiti, analyzing the criteria used to differentiate legitimate artistic expression from punishable offenses.

By applying a Cultural Criminology and Legal Studies framework, the study explores how judicial discretion shapes the legal and social perception of street art, considering cases where graffiti has been protected under freedom of expression versus instances where it has led to severe criminal penalties. The analysis further investigates how power dynamics, socio-economic factors, and local urban policies influence judicial decisions on street art.

Ultimately, this research highlights the broader implications of allowing the judiciary to define art, questioning whether current legal approaches strike the right balance between public order, artistic freedom, and the democratic use of urban space. It argues for clearer legal criteria that respect both artistic intent and the evolving cultural role of street art.

Author

• Maria Di Maggio, University of Bari