Tag Archives: selective enforcement

“The use of benign law to an illegitimate end…”

13 March 2008

The Honorable Harry J. Tutunjian
One Monument Square, City Hall
Troy, New York 12180
Dear Mayor Tutunjian,

I am writing you to express my sincere concern over the closure of the Sanctuary for Independent Media in Troy, NY. I understand that the center was closed for violations of the building code; however, I feel that the circumstances surrounding the center’s closure raise very real concerns of denial of freedom of expression and procedural due process.

It is my understanding that the Sanctuary for Independent Media was closed for code violations after it agreed to host the artwork of Wafaa Bilal. I confess that I am not familiar with Mr. Bilal’s work; however, I gather that many people find it to be very objectionable. The fact that the work is objectionable, provocative—perhaps even repugnant—is what lies at the heart of the First, Fourth, and Fourteenth Amendment concerns raised by the City’s actions.

We live in a nation of laws. And the knowledge that the law applies equally to the sinners as to the saints, to the rich as to the poor, is what underlies the rule of law. There may well have been building code violations when the center was shut down, but I am certain you realize that closing an art gallery for a code violation immediately after a controversial exhibit opens reeks of selective enforcement.

This poses perhaps an even greater danger than were the City of Troy to close down the Sanctuary for Independent Media for obscenity or sedition. Where this the case, only abuses of power would be at issue. The use of benign law to an illegitimate end is an abuse of the law itself. The virtue of our system law is that we are all equals before it, but selective enforcement is a use of the state’s police powers to destroy that equality. It leads us to question the law and those who enforce it. It forces us to be suspect of any exercise of legal authority. The very building codes at issue have been used as a source of positive rights, by guaranteeing that everyone who rents an apartment has the right to a safe and habitable dwelling. But if we fear the evils that the law may do, it may force us to abandon the good that it can accomplish.

The Supreme Court has consistently stated that strict scrutiny is demanded when the actions of government impinge on our fundamental rights. I must therefore urge you to articulate why a compelling and immediate need to close the Sanctuary for Independent Media arose at the peculiar time it did, or that you announce the establishment of independent forum to conduct an open investigation of the Constitutional issues raised by the closure of the Sanctuary by the Department of Public Works.

Best Regards,

Ryan H. White
Candidate for Juris Doctor
Northeastern University School of Law