Was defacing ‘banana’ wall a crime or artistic expression?

David Ovalle and Charles Rabin, Tribune News Service

After turning down a judge’s offer to pay a small fine and do community service for defacing Art Basel’s famous $120,000 banana, a Boston-area man pleaded not guilty on Thursday in a bid to have his act declared something other than misdemeanour criminal mischief — and perhaps extend his own five minutes of fame.

“I’m going to force a judge or jury to determine what art is,” Roderick Webber told the Miami Herald after a brief appearance in a Miami Beach court room.

The self-proclaimed artist and activist said he’s willing to let a court of law decide whether scrawling a reference to the death of paedophile billionaire Jeffrey Epstein on the wall that once held the duct-taped banana amounted to defacement or a political statement — in other words, creative expression, not crime.

Webber declined an offer to pay a $325 fine and his hearing is set for Feb. 27. The 48-year-old, who made headlines in Boston earlier this year after an arrest protesting a “Straight Pride” parade, added to the Basel and art world buzz about artist Mauricio Cattelan’s banana. The fruit, duct-taped to a wall at Art Basel on Miami Beach, sold as art work for $120,000. Cattelan had titled it “Comedian.”

Not long after the sale, performance artist David Datuna ate the banana, but was not charged with a crime. That act of creative consumption, Webber said, inspired him to do more.

“Certainly, something was smelly in Denmark here,” Webber said. “I had to go in and make their meme into a new meme.”

So Webber, who said he was at another smaller event away from the Miami Beach convention centre when he learned of the incident, headed over, a red tube of lipstick in hand. He used the lipstick to write on the banana wall, which at the time was sans banana, “Epstien (sic) didn’t kill himself.”

He was promptly arrested and escorted out of the gallery. But before being transported to jail, Webber posed this question, according to his arrest report: “If someone can eat the $120,000 banana and not get arrested, why can’t I write on the wall?”

Epstein was Palm Beach multimillionaire sex offender who prosecutors and police say sexually abused dozens of underage girls, but was given lenient plea deal by South Florida’s former US attorney. After Epstein was found dead in his jail cell, the New York City medical examiner ruled Epstein’s death a suicide. This finding was challenged by at least one notable pathologist, who was hired by his brother Mark Epstein and was present during his autopsy.

In a press release prior to Thursday’s court hearing, Webber called his supposed vandalism a “meme,” a work he dubbed “Red Revolution.” In the release touting his “subversive political statements,” he also claimed he spray painted “Epstain Didn’t Kill Himself” on the gate of the late financier’s Palm Beach estate.

The overnight jail stay for Webber in South Florida in December was the second for the self-proclaimed activist since last August. Webber, whose Facebook page is filled with stories about challenging authority. He was arrested in Boston with a group of people who were protesting a “Straight Pride” parade. The charges against him were later dismissed.

On Thursday he called his troubles in Miami minor compared to indignities suffered by artists who have been jailed and killed around the world.

“Anyone who tries to speak the truth and anyone who dares to speak of what reality is gets slammed down with a big boot by the state,” he told the Miami Herald. “If we’re continuing the theme of performance art, this needs to be done.”