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

[Volokh, Eugene]

        It seems to me that Bill's approach would be that prosecutions like
the one in Maryland are unconstitutional if the conduct did not impose
substantial "non-economic, non-physical costs" on the public, but is
constitutional if the conduct did impose such costs.

        I'm curious, then, where this places this particular prosecution.  I
doubt that attaching easily removed confederate flags and pillowcases to the
statue of a politician is likely to impose substantial non-economic,
non-physical costs, EXCEPT for the offense flowing from people expressing
their racist opinions in a mildly illegal way.

        Is it then the case, under this approach, that the law here is
therefore indeed unconstitutional as applied?  Or is the offense flowing
from the expression of racist -- but not rudely and virulently
anti-strikebreaker (cf. the use of the word "scab") -- opinions enough of a
"non-economic, non-physical cost" that it justifies bumping up the penalty
from up-to-60-days to up-to-6-years?  Or is the claim that the use of the
pillowcase and the flag somehow causes more than just serious offense, but
is in fact a threat of violence (as would be the case in the burning down of
a temple or a church), even when used solely in temporarily defacing a
statue (and the word "scab" does not so qualify)?


Bill Funk writes:

> "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.
>
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