In a tartly worded ruling, a federal judge ordered the Bloomberg administration yesterday to reinstate a permit for a block party in Chelsea featuring the painting of graffiti on mock subway cars.
The judge, Jed S. Rakoff of Federal District Court in Manhattan, called the city's abrupt cancellation of the permit unconstitutional. He even poked fun at Mayor Michael R. Bloomberg's argument that the party would incite the defacement of real subway cars.
"By the same token, presumably, a street performance of 'Hamlet' would be tantamount to encouraging revenge murder," the judge wrote.
"As for a street performance of 'Oedipus Rex,' " he added, "don't even think about it."
The permit was issued to allow Ecko Unlimited, a company run by the designer Marc Ecko, to close West 22nd Street between 10th and 11th Avenues from 10 am. to 6 p.m. tomorrow. During the party, Mr. Ecko's company is planning to have 20 people paint graffiti on metal panels made to look like the sides of the subway cars of the 1970's and 80's, which were easy targets for vandals with paint.
City Hall abruptly canceled the permit last week, shortly after Mr. Bloomberg criticized the plan, saying that "defacing subway cars is hardly a joke'" and that the party would encourage young people to do just that. On Thursday, Ecko Unlimited asked the court to intervene, saying its right to free expression had been violated.
A lawyer for the city, Paula Van Meter, argued in court that the plan would "celebrate" the destruction of government property and encourage vandalism, particularly among susceptible young people.
Yesterday, the city's Law Department said in a statement that it was disappointed and "considering our appellate options." Legally, the city could still appeal the ruling, but the timing is tricky, given that the party is scheduled for tomorrow.
When the city revoked Mr. Ecko's permit, it said that he had not explained that the event would celebrate the coming release of a video game he designed for Atari. A lawyer for Mr. Ecko disputed the claim that the company had hidden that aspect of the event.
The marketing angle would make the exhibition a commercial event, the city's reasoning went, and therefore would allow the city greater discretion, because commercial speech has fewer protections under the First Amendment.
But on Friday, when the legal hearing began before Judge Rakoff, lawyers for Mr. Ecko agreed that the video game would no longer be featured. And yesterday, Judge Rakoff was not persuaded by Ms. Van Meter's argument that the event was sponsored by the Ecko brand, and therefore commercial. Mr. Ecko has seven clothing brands and a magazine.
"If there's a concert sponsored by X or Y, does that make it a corporate event?" Judge Rakoff reasoned in court.
Failing to prevail in the commercial argument, Ms. Van Meter was left trying to convince the judge that tomorrow's event was likely to incite criminal behavior.
"There is a genuine and imminent danger that it will be repeated," she said.
Judge Rakoff, in his ruling, brushed that argument aside, accusing the city of raising this objection belatedly as a "facade" to handle its only real objection: the mere act of painting on mock subway cars. The company applied for the permit in November. It was granted in July.
The judge also wrote that the denial of the permit on the grounds that it would incite others to paint on subway cars was a "flagrant violation" of the Constitution.
"The First Amendment would be a weak reed indeed if the utterance of such expressions could be banned from the city's streets because, in the mayor's view, 'It's trying to encourage people to do something that's not in anybody's interest,' " the judge wrote, citing Mr. Bloomberg's public musings last week.
"Such heavy-handed censorship would, moreover, fall particularly hard on artists, who frequently revel in breaking conventions or tweaking the powers that be," he wrote.
As Judge Rakoff read his decision, a handful of artists who attended the hearing applauded quietly, and Mr. Ecko's lawyers clapped him on the back.
"Now we can go paint," said Alan Ket, a 34-year-old artist from Brooklyn.
Mr. Ket said he began painting years ago on subway cars, as did Mr. Ecko. The artists he knows have long ago stopped painting on subways, he said, and now paint other things, like murals on public walls, usually with permission. His most recent painting was on a temporary wall at a music festival in Toronto, he said.
He could not recall the last time he had painted a subway car.
"I gave it up a long time ago," he said.