The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
CNN (Nicole Chavez & Emily Smith) reports:
Visitors to the Trump International Hotel in Washington were greeted with a provocative message Monday night: "Pay Trump bribes here."
Artist and filmmaker Robin Bell said he projected those words onto the hotel's facade from a van across the street, hoping to call attention to accusations that President Donald Trump is allowing foreign leaders to pay for access by staying at a Trump property just a few blocks from the White House. …
Bell also projected the text of the emoluments clause, which prohibits US officials from accepting foreign gifts, onto the hotel's facade, alongside images of the Turkish and Russian flags.
Is this criminal trespass—or perhaps grounds for a civil lawsuit? It turns out that the answer is probably not, whether it's anti-Trump messages, anti-Islam protesters projecting a Muhammad cartoon on a mosque wall, antiabortion protesters projecting an image of an aborted fetus, or (as is more common) unions projecting critical or offensive messages on the walls of businesses that they are protesting.
I think a specially designed law might well be able to forbid all projecting of text or images onto others' property. But existing law likely doesn't, at least unless the projection so interferes with the business (and for a considerable time) as to constitute an actionable "nuisance."
The only case I've seen that has yielded written opinions on this question is Int'l Union of Painters & Allied Trades Dist. Council 15 Local 159 v. Great Wash Park, LLC, 2016 WL 4165919 (Nev. Ct. App. July 29, 2016). The court there concluded that the union had no First Amendment right or labor law right to project a message onto an employer's wall. But it also held that the projection is just not against the law in the first place.
The majority opinion simply notes that states take two different approaches to "trespass." Some define trespass as "invasion of land occurs through a physical, tangible [and more-than-microscopic] object." (Smells wafting from a pig farm, for instance, are borne by physical objects, but they aren't trespass.) Others also allow trespass lawsuits "when intangible matter, such as particles emanating from a manufacturing plant, cause actual and/or substantial damage to the [property]." Under either approach, this sort of light projection wouldn't be a trespass.
Judge Jerome Tao, though, wrote a much longer concurring opinion (in addition to joining the court's opinion) and one that strikes me as very interesting and thoughtful. First, he noted that:
Virtually all of the "light trespass" cases cited by the parties, and in the court's order, concern the potential trespassory effects of "ambient" light, by which I mean light intended to serve a legitimate ulterior purpose on a nearby property but which incidentally happens to leak or diffuse onto the claimant's property; common examples of this include construction lighting or light reflecting off the screen of a drive-in movie theater.
In contrast, this case involves something arguably different: a beam of light specifically and intentionally directed at the … property and nowhere else that served no purpose other than to intentionally light up the … building the way the Union wanted….
Nonetheless, he concluded that light reaching someone's property just didn't qualify as trespass under the law:
To analogize to a conventional trespass, a trespass committed by a person walking onto prohibited land would be no less a trespass if that person also happened to invade other nearby properties as well during his travels. Similarly, a pedestrian's physical presence on the land constitutes a trespass regardless of whether he was there as part of an exercise routine utterly lacking a message, or whether he was there to make a point about something. Whether that person also trespassed onto other properties along the way, and whether his trespass was with, or free of, communicative purpose, are fundamentally irrelevant to whether a trespass occurred …
The [property owners] argue that the beam of light itself is, by definition, a "tangible" thing that can "invade" real property. … But what does it really mean to say that something is "tangible" or amounted to a "physical" invasion? … [The owners' argument] is that the light projection constituted a trespass because light is composed of "particles" (according to the Encyclopedia Britannica, which the [owners] cite in their brief), and those particles are tangible and therefore capable of physically intruding across the [owners'] property line. But whether something is "tangible" or not does not seem to me to be a proper or clear legal test, at least not one that can be readily understood and applied to a wide range of facts.
Instead, the argument strikes me as a syllogism based upon superficial pseudo-science, and I am not sure that the outcome of this case ought to be governed by this kind of approach.
As an initial observation, the science relied upon by the [owners] appears to be wrong, or at least incomplete. If one really wants to get into the physics of the question, light has the properties of both a wave and a particle. …
More fundamentally, technical merit aside, scientific analysis and legal analysis are two different modes of inquiry designed to accomplish very different goals. … Even if it were unequivocally true that a quantum physicist would think of light as formed of particles, that conclusion alone should not govern whether we should find a trespass here as a matter of legal analysis and underlying public policy. …
Properly framed, I think the question before us is not whether light is tangible or not, but instead: what legal right inherent in property ownership does the light projection supposedly violate? …
Fundamentally, the right to own property is the right to exclude others from entering, using, or possessing it. In a real sense, whenever property is bought or sold, what has really been purchased is the right to sue someone in court for trespass for entering, using, or possessing the property without the owner's permission. …
We are confronted with a clash between very old law and evolving new technology. Trespass is one of the oldest torts known to Anglo-American jurisprudence, dating as far back as twelfth-century England. But back then, even the most advanced thinkers of the day were not aware of such things as atoms, electrons, or photons. …
It should come as no surprise, therefore, that the tort of trespass was originally limited to physical invasions of property by people or objects composed entirely of matter. … In an era lit by wax candles, and then whale-oil lamps, and then kerosene, there was not much that one could do to another's property with light. But nowadays light can be so many more things and can be used in so many more ways; searchlights, lasers, and light projectors of the kind involved in this case are now commonplace. The inquiry here is whether the bundle of rights traditionally protected by the ancient tort of trespass should be read to include the right to stop the newly-developed light projection used here.
And the answer to that inquiry, Tao concluded, is that the question should be treated under the tort of nuisance rather than the tort of trespass:
The torts of trespass and nuisance are closely related, so much so that some courts have observed that expanding the tort of trespass to cover such things as light, gas, or odors effectively blurs the two torts together and makes them one. … Light invasions—at least of the kind at issue here—are better suited to be addressed by the law of nuisance than the law of trespass.
The fundamental conceptual difference between a trespass and a nuisance is that trespass is the right to exclude something absolutely, while nuisance is the right to exclude something that might have to be tolerated in small quantities but may become the subject of judicial relief when it becomes excessive and unreasonable even in an urban environment. … Thus, the tort of nuisance involves a balancing of competing interests with an eye toward ascertaining the reasonableness of the intrusion, while the tort of trespass is absolute and involves no such balancing.
What this means for this case is that, by claiming a trespass to have occurred, the [owners] are seeking an absolute bar against the invasion of projected light, without any inquiry whatsoever into whether the intensity, duration, or other qualities of the projection were unreasonable or excessive. … [But] every property located in a densely populated urban area … is continually bombarded by multiple artificial light sources, including such assorted things as street lamps, commercial neon signs, neighboring porch lights, automobile headlights, helicopter searchlights, … and the like. … All of these lights affect the appearance of the property with varying intensity and duration, some brief and barely perceptible, and some with great intensity for long periods of time. …
Ultimately, when the question is properly framed, the answer strikes me as quite simple: I do not think that the absolute right to block artificial light emanating from somewhere off of the property—without any inquiry into its intensity, duration, reasonableness or unreasonableness—should be included within the "bundle of rights" that one acquires when purchasing a parcel of land in a densely populated urban center like Las Vegas. …
On the other hand, simply because a property owner does not have the right to exclude all light emanating onto a property under trespass law does not mean that one must tolerate every kind of light that is beamed onto the property no matter how excessive or unreasonable it may be. In some cases, projecting artificial light onto someone else's property might constitute an actionable private nuisance. The district court's order contains no factual findings regarding whether such a nuisance occurred in this case, and so that question is not before us.
I would add that it would be hard to show that a projected message is a "nuisance" in the legal sense of the word, at least unless the message causes some harmful physical effects (e.g., it shines brightly into some guests' windows and keeps them up at night). But it seems to me correct to say that any claim by property owners, under existing tort law, should be raised under a nuisance theory rather than a trespass theory. Whether a legislature should enact a new statutory right not to have text or images projected onto your property is a separate matter.
And that leads us to a practical question, but perhaps one with some legal significance: Wouldn't it be relatively cheap to hire someone who'll also stand on the sidewalk and project some light over wherever the protesters are projecting it? That wouldn't make the wall look pretty, but it should be enough to make the original display illegible.
Or perhaps someone could just block the projector's beam (though that might be easier or harder depending on where the projector is located). The Independent (UK) (Maya Oppenheim), for instance, reports that the protester in the Trump incident "said it took around ten minutes for security to come and block the projector."
If one or another self-help solution is indeed relatively easy, should that matter to the legal analysis?
Thanks to Prof. Andy Sellars for the pointer to the most recent incident, which led me to reprise (in edited form) an earlier post of mine, which I put up shortly after the Nevada decision came down.