By Eugene Volokh
A group of teens spotted Sunday evening slapping up stickers along a Bellmore street [including on a lamp post and a Chamber of Commerce sign] could be charged with felonies for posting white supremacist messages and images ....
One sticker, photographed and removed by police, reads “White Pride World Wide.” Another says “Don’t Blame Me, I Voted for Hitler.”
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A third shows a hand making an obscene gesture over a Star of David....
Whoever posted it could be charged under a state law prohibiting the posting of images of swastikas or nooses. The first-degree harassment charge carries a maximum sentence of 1 year in jail....
Putting stickers on lampposts and other signs might well be illegal, and could be punished under content-neutral laws or city ordinances prohibiting such attachment of stickers to city property or to other people’s property. Likewise, targeting property owners for property crimes based on the owners’ race, religion, and the like might lead to enhanced punishments.
But the police theory here seems to be that the speech is punishable precisely because of the message that it conveys; the relevant statute is apparently N.Y. Penal Law § 240.31:
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A person is guilty of aggravated harassment in the first degree [, a felony,] when with intent to harass, annoy, threaten or alarm another person, because of a belief or perception regarding such person’s race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, regardless of whether the belief or perception is correct, he or she: ...
3. Etches, paints, draws upon or otherwise places a swastika, commonly exhibited as the emblem of Nazi Germany, on any building or other real property, public or private, owned by any person, firm or corporation or any public agency or instrumentality, without express permission of the owner or operator of such building or real property; [or]
5. Etches, paints, draws upon or otherwise places or displays a noose, commonly exhibited as a symbol of racism and intimidation, on any building or other real property, public or private, ... without express permission of the owner or operator of such building or real property.
Such a content-based speech restriction violates the First Amendment. There is no “hate speech” exception to the First Amendment, and while “true threats” may be legally punishable, the law is not limited to such threats. (The “true threats” exception covers a fairly narrow category of speech, and a good deal of menacing speech does not fall within that exception, especially when it isn’t individually targeted to a particular person.) Moreover, even when speech can be restricted because it is, for instance, a form of trespass on others’ property, it cannot be restricted because of its content and viewpoint.
The teenagers posting these messages are behaving evilly, but even evil people and evil ideas are protected by the First Amendment. I do hope that the New York prosecutors and police recognize the First Amendment barriers to prosecutions under this statute.