1st Amendments Rights? Not In My Courtroom

[crashhelmet]

A man is facing trial on 13 different counts of vandalism for writing anti-bank slogans on sidewalks outside Bank of America branches in San Diego in sidewalk chalk.

Judge Howard Shore, who is presiding over the case, granting Deputy City Attorney Paige Hazard's motion to prohibit attorney Tom Tosdal from mentioning the United States' fundamental First Amendment rights.

The additional kicker? BofA claims it cost them $6,000.00 to remove the water-washable chalk from the sidewalk of a single branch.

California Man Faces 13 Years In Prison For Offending Bank of America With Kiddie Chalk

Various articles state that the VP of Global Security for BofA, who happens to be a former cop, harassed both the San Diego PD Gang Division and the District Attorney's office into filing charges.

I don't know enough about California's vandalism laws to say if they've ever been argued for or against the 1st Amendment or if this even qualifies as vandalism as it didn't produce any lasting damage.

[Gravekeeper]

I don't see how this case has any leg to stand on. No damages were caused and the sidewalk is public property, not private property. Its not up to Bank of America to clean it up ( Nevermind to the ridiculously claimed tune of $6000 ). It was not their responsibility to clean it up. They did that voluntarily. I don't see how that figure can be used in the case. Because that figure is the thing that they're using to even make this technically worth jail time under California's vandalism laws.

Barring the mentioning of the first amendment is completely beyond the pale though, the judge should be barred for that.

[Andara Bledin]

Apparently if it's vandalism/graffiti, then the First Amendment doesn't exist in the eyes of the law.

Complicating matters of property is that, despite a sidewalk belonging to the city and not the entity that owns the adjacent property, those owners are required to keep up the sidewalk to a certain degree. It is possible that BofA was actually beholden to remove the chalked messages. The $6000.00 figure to do so, however, is ridiculous... unless they hired maids using only Evian water to rinse the offending messages away. It is, however, ultimately irrelevant, because they are not suing the man; the city is prosecuting him for 13 counts of vandalism.

While the maximum sentence could stretch to 13 years (if served consecutively), and fines of up to $13,000, the likelihood is that he will be ordered to serve and pay perhaps a fraction, partly due to the fact that he chose something non-permanent for his display.

Story at Huffington Post with a statement from the attorney's office

[HYHYBT]

Do they prosecute anyone else for drawing on the sidewalk with chalk?

[Gravekeeper]

Do they prosecute anyone else for drawing on the sidewalk with chalk?

A quick Google around says that yes, yes they do. They arrested Occupy protestors for daring to draw with chalk. They even arrested the mother of a six year old girl because she drew a picture of herself on the sidewalk with chalk.

However, it seems that the cases in question run into legal trouble when they get to trial due to freedom of speech. In some cases even getting the city/state sued in return. Which is why I assume the judge barred mention of the first amendment to protect the court's legal ass.

[fireheart17]

The $6000.00 figure to do so, however, is ridiculous... unless they hired maids using only Evian water to rinse the offending messages away.

From what I heard, it was water-soluble chalk. It should've gone away instantly.

[draco664]

The additional kicker? BofA claims it cost them $6,000.00 to remove the water-washable chalk from the sidewalk of a single branch.

Of course. You have to factor in the bonuses, you know...

However, it seems that the cases in question run into legal trouble when they get to trial due to freedom of speech. In some cases even getting the city/state sued in return. Which is why I assume the judge barred mention of the first amendment to protect the court's legal ass.

Baring a defense is an excellent way to give a free pass to the appeal.

[lordlundar]

Baring a defense is an excellent way to give a free pass to the appeal.

Pretty much. I read the first post the first thing that popped into my mind was "guaranteed appeal and possible removal of the bench" for that one.

[D_Yeti_Esquire]

So what they did was remove the ability for the trial court to discuss the first amendment which seams reasonable.

That actually makes sense when you consider the case. The law violation was the vandalism law which is not the speech itself but the manner in which that speech was initiated. In this case the speech 1) was not on the defendant's private property, 2) required expenditure of someone else to clean up, and 3) was on public property which does not necessarily mean free use, rather publicly owned (I can't throw a political rally of considerable size just because I want to for the same reason without city sanction - a locality can determine what constitutes appropriate use of public property). That's the only job of a trial court: did the defendant break the law as written and if so what punishment?

So in a trial court, the only question is did the defendant violate the law in question and that's it. When you get to appeals or trying to get a writ of certiorari, that's when you try to challenge the law itself. The defendant should lose the first trial period. I doubt he'd win by appealing 1st amendment in appeals anyway, but that's where he can try it.

[Andara Bledin]

Pretty much. I read the first post the first thing that popped into my mind was "guaranteed appeal and possible removal of the bench" for that one.

Probably not.

As I mentioned in my earlier post, the First Amendment does not apply in cases of vandalism, of which graffiti is a form. If he'd held a sign or just propped one up with the same message that wasn't actually attached to property that didn't belong to him and/or wasn't available for the use to which he put it, he would have been covered.

But the First Amendment cannot be used as a defense in the defacement of another's property, no matter how transient the defacement is.

[crashhelmet]

But the First Amendment cannot be used as a defense in the defacement of another's property, no matter how transient the defacement is.

Is there an existing ruling that declares that?

[Andara Bledin]

Is there an existing ruling that declares that?

My right to express myself stops at your property line. You cannot trample the rights of another in the exercise of your own. This is fairly well established.

Here is an excellent review of the matter:

Arias Final [pdf]

[Panacea]

However, it seems that the cases in question run into legal trouble when they get to trial due to freedom of speech. In some cases even getting the city/state sued in return. Which is why I assume the judge barred mention of the first amendment to protect the court's legal ass.

I think I see what the DA is doing. He's trying to prevent jury nullification. He knows that a jury would likely sympathize with someone fighting back against the big bad banks if the case becomes about the First Amendment rather than chalk on a sidewalk.

A reasonable fear. If I were on such a jury, I'd vote to acquit. No vandalism here if the "damage" washes away with a good rain.

[Andara Bledin]

A reasonable fear. If I were on such a jury, I'd vote to acquit. No vandalism here if the "damage" washes away with a good rain.

Did you note the location of the graffiti? Do you know the last time this area had a "good rain?"

The basic facts are that it's the public's sidewalk, and despite the First Amendment, he has no right to alter it's appearance for his message.

The fact that the judge is quashing the First Amendment argument out of the gate is supported by SCotUS decisions on the matter.

They guy can scrawl anything he wants on his own property. He can put his messages on signs that he holds while on public property. He is not protected when he chooses to scrawl his message on public property.

[Gravekeeper]

The basic facts are that it's the public's sidewalk, and despite the First Amendment, he has no right to alter it's appearance for his message.

From what I can drum up about California's vandalism laws, the factor that decides whether or not sidewalk chalk is vandalism is if there was malicious intent. Hence they don't arrest 5 year olds drawing pictures ( Unless they're in New York, Virginia or Pennsylvania, they'll totally arrest a 5 year old ).

However, I would like to think it's a tough sell to say a protester with water soluble chalk on a public sidewalk has malicious intent.