Wednesday, June 26, 2013

First Amendment or Vandalism?

California man faces 13 years in jail for scribbling anti-bank messages in chalk

I saw the story on Drudge and had questions.  I checked the original story and didn't see the information I was interested in, though the picture is important.

What really interests me is whether the sidewalk decorated was public space or private space.  The comments on RT talk about fascism and the 1st  Amendment.  People don't seem to understand what the 1st Amendment means and where it applies.

Anybody reading this blog is probably familiar with the text of the 1st Amendment:
Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The provisions of this amendment have been incorporated against the states, meaning the states may not violate it either.  So, the government of California can not abridge your free speech any more than the U.S. Government can.

You can't stand up in the middle of your local supermarket and pontificate on your opinions.  The 1st Amendment doesn't protect you on private property, because the property owner gets fairly free use of her or his own property.  She's not the government.  If you're interrupting her business or infringing on her rights, she gets to seek redress, usually by having you arrested. 

In an online example, I used to help enforce a gaming server's rules against profanity.   Undereducated gamers would often complain that I was infringing on their 1st Amendment rights.  I finally made a keybind that read, "This server is a private space.  This gaming community is not Congress.  The 1st Amendment does not apply here."

In San Diego case, the picture accompanying the original story appeared to show the man providing a website address, possibly of a competitor.  If the sidewalk is private property, the business certainly does not have to permit that to happen.

If that sidewalk is public property, that's a whole different situation.  In response to the Huffington Post's article, the San Diego City Attorney's office emailed a statement on the case of People v. Olson:
1. This is a graffiti case where the defendant is alleged to have engaged in the conduct on 13 different occasions. The trial judge has already held that, under California law, it is still graffiti even if the material can be removed with water. Most graffiti can be removed. Also, the judge and a different pre-trial judge held that the First Amendment is not a defense to vandalism/graffiti. 

2. The defense is trying to make this case into a political statement, which it is not. This is just one of some 20,000 criminal cases that are referred to us annually by the police department. We have prosecutors who decide whether to issue cases. They are professionals. The City Attorney was not involved in deciding whether to issue this case as is typical practice in prosecution offices for most cases. He hadn't heard of this case until it was in the media.

3. The defense is whipping up hysteria about the prospect of 13 years in custody. This is not a 13 year custody case. It is a standard graffiti case compounded by the fact that the defendant is alleged to have done it on 13 separate occasions. Because there were 13 different occasions when the defendant allegedly engaged in the conduct, the law requires them to be set out separately in the complaint. This increases the maximum sentence, but it still is a graffiti case and nothing more. The courts routinely hear graffiti cases and handle them appropriately using judicial discretion.

4. It is not unusual for victims to contact police or prosecutors about a case. Our prosecutors are trained to focus only on their ethical standards in deciding whether to file a case.

5. We prosecute vandalism and theft cases regardless of who the perpetrator or victim might be. We don't decide, for example, based upon whether we like or dislike banks. That would be wrong under the law and such a practice by law enforcement would change our society in very damaging ways.
If the content of the man's site is political speech, and the sidewalk is public property, it would seem to me as nothing more than an interested party (I'm not an attorney) that there's a 1st Amendment case here.  It would depend on what we consider graffiti.  California's penal code section 594 tells us about California's definition.
594(e) As used in this section, the term "graffiti or other inscribed material" includes any unauthorized inscription, word, figure, mark, or design, that is written, marked, etched, scratched, drawn, or painted on real or personal property.
I don't like the idea that you need a permit to exercise your 1st Amendment rights.  I understand that for demonstrations and gatherings, there is a need to ensure fair use of public space, and permitting is important to providing equal access.  It is also clear that taggers don't have the right to spray artistic versions of their names on public buildings.  That's not political speech, it's vandalism.  Where do this man's actions fall?  Clearly the judge feels we're dealing with graffiti, not political speech, but I'd still like to know if the space used was public or private and what the content of his site might be.  I don't see this situation as clear cut at all.

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