Re: Ok lawyers, explain this one

1

Eh, I don't want to defend it, and the stated rationale (""The State's Vandalism Statute does not mention First Amendment rights") is stupid, but I'm sure the idea is that you don't have a First Amendment right to get your message out by defacing property, and if the law is applied content-neutrally, the First Amendment shouldn't really come into it. (I wouldn't defend it because I doubt very much the law is being applied content-neutrally here, and I would think there'd be a legitimate defense in that.)


Posted by: potchkeh | Link to this comment | 06-27-13 1:43 PM
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potchkeh:

not even sure this rises to the level of "defacing property" - the chalk was water-soluble, which means a quick hose-down or some light rain was just going to wash it away, so there's no actual damage to speak of.

And it's a pretty big stretch to say that the public sidewalk is something BOA even has rights over as far as messaging.


Posted by: sam | Link to this comment | 06-27-13 1:55 PM
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There also might be a little confusion about the scope of the order,which is almost certainly a motion in limine evidentiary ruling. It means that the First Amendment can't be mentioned to the jury at trial as part of the presentation to the jury. The defendant is still free to argue for a new trial or for the judge to dismiss the charges as a matter of law on First Amendment grounds, or to do so on appeal, but his lawyer can't tell the jury "the otherwise-illegal vandalism was OK because First Amendment so therefore acquit." That doesn't at all make the order right (because, as Potchkeh says, there's likely to be a strong argument here that the law was not applied in a content-neutral way), but is perhaps a little different than the implications some people might draw from the reporting.


Posted by: Robert Halford | Link to this comment | 06-27-13 1:59 PM
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2: Right, but that's relevant to whether it constituted vandalism/whether the prosecutor should have brought the case in the first place. (Answer is almost certainly "no" to the latter, no idea on the former.) Has nothing to do with the First Amendment. Not sure what BOA's rights have to do with anything (unless you mean that he wouldn't be prosecuted if this wasn't the sidewalk in front of BOA, in which case I agree, and that's what I meant when I said that I doubted the law is being applied content neutrally).


Posted by: potchkeh | Link to this comment | 06-27-13 2:00 PM
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There are many cases where a judge will not permit a first amendment defense. For example, if the alleged crime consists of saying "I will give you 100 dollars if you kill my wife," the first amendment is not a defense. This is also true of graffiti related crimes.


Posted by: Unimaginative | Link to this comment | 06-27-13 3:43 PM
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It is reasonable to consider temporary water soluble chalk messages to be "speech" rather than graffitti.


Posted by: lemmy caution | Link to this comment | 06-27-13 4:00 PM
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Argh. This affirmation I'm editing is terrible - I'm trying to give guidance rather than just writing the damn thing myself, but the writer is hopeless. It's not bad lawyering in any law-specific sense, just terrible terrible grammar and failure to make any sense at all.

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Posted by: LizardBreath | Link to this comment | 06-27-13 4:16 PM
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If you're standing in front of the building protesting your ugly body is vandalism and it takes the hard work of peace officers to remove it. Irrelevant that it might have gone away on its own.


Posted by: SP | Link to this comment | 06-27-13 4:18 PM
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Is the ordinance vulnerable to a facial challenge? Probably not; I'd bet it's a content neutral time, manner, place restriction and, as Justice Stevens mused in Metromedia v. San Diego (dissenting), a community has the right to decide that its interests in protecting property from damaging trespasses and in securing beautiful surroundings outweigh the countervailing interest in uninhibited expression by means of words and pictures in public places.

Although the bank cares more about the content than the fact of the chalk, the charge isn't content-based.


Posted by: CharleyCarp | Link to this comment | 06-27-13 4:21 PM
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This whole thing makes me think people should go back with a video projector and project the exact same message every single day.


Posted by: Sifu Tweety | Link to this comment | 06-27-13 4:21 PM
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11

I'd hate to go to jail for hopscotch.


Posted by: fake accent | Link to this comment | 06-27-13 4:27 PM
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Don't you damage my sidewalk with your photons! Those things have momentum, you know!


Posted by: SP | Link to this comment | 06-27-13 6:38 PM
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This is also true of graffiti related crimes.
"she painted over my tag so I chibbed her! I have to protect my first amendment rights!"


Posted by: | Link to this comment | 06-27-13 6:54 PM
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What you really want here is a selective prosecution defense, no? The crime may well have been a crime, but the prosecution is still unlawful because it was brought for an impermissible reason (i.e. based on the expressive content of the speech). I understand in general terms that those defenses are really hard to make out, though.


Posted by: widget | Link to this comment | 06-27-13 6:58 PM
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12: And they'll ricochet and hit innocent bystanders!


Posted by: essear | Link to this comment | 06-27-13 8:09 PM
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It seems we have a testable hypthesis: someone should quote in chalk on the bank's sidewalk from the bank's own press releases and/or financial statements and see if the same lawsuits ensue.


Posted by: | Link to this comment | 06-27-13 8:17 PM
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WOW. Have you guys seen Rep. Tammy Duckworth slamming that IRS contractor guy (Castillo) who's been getting special contract consideration due to his alleged disabled veteran status? Which is actually an old football injury.

I'd heard mention of this, but her interrogation of him, and her lecture, is just WOW. We need more like her.

Really worth watching.

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Posted by: parsimon | Link to this comment | 06-27-13 8:28 PM
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It is reasonable to consider temporary water soluble chalk messages to be "speech" rather than graffitti.

This reminds me of the splendid AP Herbert "Uncommon Law" made-up cases, in which the issues included the difference between libel and slander as applied to (for example) naval flag signals, skywriting, gramophone records, trained talking parrots etc.


Posted by: ajay | Link to this comment | 06-27-13 9:49 PM
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