Citizens United, Graffiti, and the Web

We need more outlets to challenge the way things run. Challenging corporations is difficult, necessary, and proper. Someone in San Diego tried to do that. He is losing his case. It turns out that if you scribble anti-bank messages, you could face 13 years in jail. The medium: washable children’s chalk, not spray paint, on the sidewalk in front of banks. The bank: Bank of America. Now, you might think the First Amendment would be an issue here; it’s not. According the news report, “a judge had opted to prevent the defendant’s attorney from ‘mentioning the First Amendment, free speech, free expression, public forum, expressive conduct, or political speech during the trial,’ and the defendant must now stand trial on 13 counts of vandalism.” The defendant was saying other banks were better banks. Bank of America did not like it, claimed it cost $6,000 to clean up the chalk, and apparently used its influence to have the city gang unit investigate and hand the case to the attorney’s office. Given that this defendant may not be allowed to engage in this speech, because of anti-graffiti and, my bet, property laws, all that may be left is the Web. I think offline mediums matter and should be protected. The Web is an alternative, not a substitute. But even on the Web a protester will have problems.

As I argue in Speech, Citizenry, and the Market: A Corporate Public Figure Doctrine, corporate power to speak has gone up. Corporate power to limit speech has not. A corporate public figure doctrine would allow someone to use a corporation’s logo and name to challenge to corporation on public issues. A corporation’s word mark is its given name; its logo, its face. Just as we would not limit the ability to question and identify human public figures for speech, we should not do so for corporate public figures. A foundational commitment of free speech law, perhaps the foundational commitment, is that public figures don’t and can’t own their reputations. Yet, through trademark and commercial speech doctrines corporations have powerful control over their reputations. If corporations are people for free speech purposes, as a constitutional matter, their control over their reputations can be no greater than the control other public figures have. Corporations cannot have it both ways. Corporations want and receive many of the legal rights natural persons receive. They should be subject to the same limits as other powerful, public figures.

HT: Fred von Lohmann for noting the story on Facebook.

PS. I am not saying corporations should be challenged, because they are corporations. That is silly. In that sense, I would challenge those who challenge, but that’s me.

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20 Responses

  1. Howard Wasserman says:

    I would think the defendant, if convicted, has a pretty good argument on appeal.

  2. Deven says:

    Me too. I am still surprised. If the report is correct, the idea that the statute simply guts the First Amendment somehow is wild.

  3. Ken Rhodes says:

    I don’t agree that the ruling “guts the first amendment.”

    The ruling says “if you want to tell passers-by that my company is inferior, or lousy, or downright evil, and if you’re doing it in a public place, then I can’t stop you. But you can’t deface somebody else’s property in the process of doing it.”

    “Somebody else’s” might be me, or it might be the city. If you can’t go around tagging the subways (and the sidewalks) with your personal tags, then you can’t do it with a public service message either.

    So man up, brother. Stand there with a sign in your hands, and dare them to challenge your first amendment rights then.

  4. Brett Bellmore says:

    Um, no, given that he was writing on the bank’s property, it wouldn’t occur to me that the 1st amendment was at issue. As Ken says, the 1s amendment isn’t a license to deface others’ property in order to communicate your message.

    The penalty is grossly disproportionate, given the minimal severity of the offense. But it isn’t remotely a free speech question.

  5. Howard Wasserman says:

    Do we know whose property it is? Assuming for the moment that it is public property, what does it mean to “deface” property? People tape signs and flyers to public property all the time, which is no more permanent than children’s chalk.

  6. Horspool says:

    The San Diego defendant seems to be charged with violating Section 594 of the Calif. Penal Code, which makes “malice” an element of the crime. The California jury instruction on malice ( ) is all about motive. How does the judge get away with forbidding the defendant to discuss his motive? Shouldn’t his lawyer file an interlocutory appeal or request a mandamus?

  7. Horspool says:

    California Penal Code Section 136: “As used in this chapter: (1) “Malice” means an intent to vex, annoy, harm, or injure in any way another person, or to thwart or interfere in any manner with the orderly administration of justice.”

    The San Diego defendant apparently wished to alert citizens to the misconduct of BofA and its cronies in government. That doesn’t fit the Penal Code definition of malice.

  8. mls says:

    It seems to me that the questions that should be asked are (1) why does California have laws that subject people to 13 years in prison for writing with children’s chalk on the sidewalk, regardless of the message and (2) why would prosecutors choose to prosecute this case?

  9. Deven says:

    Hmm Horspool thanks.

    As for the rest. Sorry, by “gut” I was going from the new report which indicated that the judge said the statute didn’t mention First Amendement so it could not be argued. That seems to be an attempt to gut. As Howard noted, the sidewalk issue may mean it wasn’t bank property. If there was writing on a bank wall, that might be different.

    In any event, thanks to all for the comments.

  10. Joe says:

    Even if the property wasn’t the bank’s property, permanently defacing public sidewalks doesn’t sound like protected speech. The link supplied in #9 notes:

    “As with most graffiti cases, Mr. Olson was offered reduction to an infraction after completing volunteer work service cleaning up graffiti.”

    I can understand that and if it cost thousands to clean up that should be passed along (sounds like a lot) but sounds like something worthy of a short sentence. And, there seems room for particularly a sympathetic jury to acquit. The requirement of “maliciously” particularly.

    Sounds like overcharging hurt a chance for victory here.

  11. Brett Bellmore says:

    By the way, while I don’t regard this as a 1st amendment case, I none the less consider it an outrage that the judge didn’t permit him to raise a 1st amendment defense in court. The idea that the state can dictate what sort of defense you can assert, as opposed to simply arguing to the jury that the defense is invalid, makes something of a joke of the right to trial by jury.

  12. Joe says:

    Brett appears to be calling for jury nullification.

    Trial by jury includes juries deciding questions of fact while judges decide questions of law and the state sets up various types of possible defenses as matter of law.

    For instance, the definition of not guilty for reason of insanity is a legal matter. A person cannot offer a ‘defense’ to the jury that something else is insanity.

    This is not a novel set of rules. If Brett wants to set up a new system, fine, but the state not following it is not quite a “joke.”

  13. I guess 13 years is too much to bear for a anti- bank messages. That might damage a corporation’s image but the length of punishment is way too long.

  14. Brett Bellmore says:

    “Brett appears to be calling for jury nullification.”

    No “appears” about it. Nulification is what the right to trial by jury exists to ensure the possiblity of. If you’re not going to have nulification, you may as well adopt the Napoleonic system of justice, it’s better at everything else.

    Look up the Zenger case, William Penn, all the classic examples of the importance of trial by jury: They are all instances of jury nulification. Jury nulification is what we have juries for. This is not to say that juries should usually be nulifying. But, just as a fuse that can never blow out is no use as a fuse, even though you expect it to conduct current most of the time, a jury that cannot nulify is a worthless jury.

    If the State does not think the defendant’s argument for innocence a valid one, let them persuade the jury of that. A defendant who is not permitted to present their prefered argument to the jury is a defendant who has been denied their right to a true jury trial.

    And, no, I don’t want to set up a new system. I want to restore the one the Bill of Rights was guaranteeing us, when it guaranteed the right to trial by jury. The “new” system is the one that has since been foisted on us, in the war on jury nulification.

  15. Joe says:

    Brett, allowing blunt open appeals to jury nullification (which might in some fashion be allowed in a few states IIRC) went in decline in the 19th Century. The Supreme Court in the 1890s held it was not required by “trial by jury.”

    “Jury nullification is what we have juries for.”

    We have juries for a variety of reasons, particularly as a voice of the community to weigh the facts. We have judges to weigh the law. Juries could weigh the law too, and did particularly when it was basic “common law” that an unschooled layperson might be thought to understand.

    Your selective appeal to history (skipping over the last century or more) is duly noted. I understand the appeal of jury nullification but yet again you wish to not only argue for a new path but demand those who don’t follow you are in effect “a joke.” Thus, a century of law is “a joke” here.

  16. Joe says:

    ETA: The jury, particularly in a criminal trial, has broad ability to “nullify” if they so desire, particularly with a provision like this that requires finding “malicious.”

    Defense lawyers can help them in certain ways, just not quite blatantly. A jury’s job is hard enough w/o trying to be judges of the law. As to “new” — if you want to return to a past system that no longer is here, you have to replace the current system. But, it won’t be like the old system, because things have changed since the 1730s. So, yes, it will be a “new system.”

  17. Brett Bellmore says:

    “Brett, allowing blunt open appeals to jury nullification (which might in some fashion be allowed in a few states IIRC) went in decline in the 19th Century.”

    If you knew that, why on Earth did you accuse me of wanting a “new” system, when I was simply proposing we restore the sort of jury system the Sixth and Seventh amendments were referring to?

  18. Horspool says:

    What Brett Bellmore wrote! Yeah!

  19. Joe says:

    The comment before explained how it would be a ‘new system’ given everything that happened since then. It would be quite different to have the system in place today.

    The amendments left open the particulars, including the breadth of the power of the jury to re-examine the law. The power to do that was already strongly debated by 1800 & it factored in the Chase impeachment. His acquittal in part underlined that such direct legal appeals to the jury was not so clearly fundamental to justice under the BOR.

    If it ‘refers’ to that today with the complexity of the law, a much more diverse jury pool, etc., is even more debatable.