City taxpayers might as well head to Chelsea today to enjoy Ecko Unlimited’s block party, because there’s nothing they can do about it. The highlight of the event will be a graffiti demonstration featuring 20 street artists showcasing their craft on mock-ups of the kind of subway cars the rest of the city pays taxes to purchase and keep clean. Despite the city’s efforts to block the party on the grounds that it would encourage vandalism, a federal judge has ruled that the show can go on. Looks to us like another judicial activist is up to his old tricks.

Ecko, the hip urban outfitter, first applied for a street-use permit on November 1, 2004. It told the city that the artists would be spray painting the sides of tractor trailers as part of an “art demonstration/exhibit.” Only recently, the city says, did it discover that the party planners had decided to use two-dimensional models of subway cars instead of trucks.

The city tried to pull the plug, arguing that featuring artists defacing model subway cars would encourage other would-be vandals. Perhaps that’s a creditable argument, although New Yorkers are presumably smart enough to draw a distinction between defacing a flat model and vandalizing city property. That isn’t the real issue of the case, though. The odor of judicial activism is.

Graffiti artists have the right to spray paint wherever they wish, provided the “wherever” is private property on which they have permission to paint. But here, the event’s sponsor is asking city taxpayers to sacrifice one block of a city-funded public street for the undertaking. The taxpayers deserve a say in the matter, through their elected representatives. Those representatives established a city agency to issue permits for street events, and that agency decided that this event didn’t qualify.

That didn’t satisfy Judge Rakoff, a – you guessed it – Clinton appointee, who wrote in his opinion that “[t]he 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.'” It’s a nice theory, but the city already regulates plenty of speech in the public streets for plenty of reasons, even in the case of artists who, writes the judge, “frequently revel in breaking conventions or tweaking the powers that be.”

Judge Rakoff is the one, by the way, who ruled, in 2002, that the federal death penalty was unconstitutional because there was a scintilla of a chance that an innocent person would be executed. As the former governor of Delaware, Pete du Pont, noted in a column on OpinionJournal.com at the time, such logic would preclude wars, police chases, and surgeries, each of which claims more innocent lives than the death penalty as currently practiced.

Judge Rakoff has the capacity to make level-headed judgments. It was he who applied a strict reading of copyright laws to defend the intellectual property rights of the recording industry in an Internet music case in 2000. But he generally is the kind of activist that has resulted in the expanding Republican majority in the Senate. As the Great Scalia has noted, judges can’t compromise the way legislatures can. Activist judges are ill-equipped to weigh the risks and benefits of the death penalty, or how best to use city streets. Which is why the judge should have left the decision up to the representatives of the people of New York.