Felony prosecution for attaching offensive objects to a publiclyowned statue of a former legislator

[Bill Funk]

"Volokh, Eugene" wrote:

>         [clip] if Congress enacted a law that said "Refusal to
> register for the draft shall be a misdemeanor punishable by up to 60
> days in jail; refusal to register for the draft based on animosity to
> America or sympathy for Communism shall be a felony punishable by up
> to 6 years in prison."  Would that be constitutional?

I doubt it.  I fail to see how the draft violator's animosity or
sympathy injures or imposes non-economic, non-physical costs on anyone.
Recall that this thread began with the question whether enhanced
penalties for defacing public property while communicating a message of
animosity based on race were constitutional.  Eugene agreed that
enhancing penalties on the basis of the degree of dollar damage was OK,
and I merely suggested that enhancing penalties on the basis of
increased harms to the community seemed a logical corollary.  And
scaring people because of their race, long a part of American history, I
think is an increased harm to the community.

>                 Also, Bill suggests that my hypothetical law which
> says "Anyone who violates any other statute -- trespassing laws,
> vandalism laws, noise regulations, etc. -- while communicating a
> message of animosity based on race, religion, veteran status, or
> strikebreaker status is guilty of a felony and may be punished by a
> penalty of up to six years in prison" is often constitutional as
> applied but also often unconstitutional as applied.  I guess I'm quite
> puzzled by why this would be so.  When would the law be constitutional
> and wouldn't it be?

Someone burns down a temple or a black church and leaves a sign that
says "kikes go home" or "niggers go home."  I think the law could be
constitutionally applied there.
A picketer holding a sign saying "don't hire scabs" steps one foot over
the line onto the employer's property and is arrested for trespassing
while demonstrating animosity toward strikebreakers.  I don't think the
law could be constitutionally applied there.

I'm with Eugene though in being curious how others see this.

Bill Funk
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