The Volokh Conspiracy
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No First Amendment Right to Spray Paint "Free Gaza" on State University of N.Y. Buildings
The court also rejected defendants' "necessity" defense.
From People v. Sanin & Guillotin, decided (generally correctly, I think) Aug. 8 by trial judge James Farrell of the Ulster County (N.Y.) County Court:
Defendants, Jamie Sanin and Charlie Liu Guillotin, former SUNY New Paltz students, were indicted on charges of Criminal Mischief in the Second Degree (Penal Law § 145.10]), Making Graffiti (Penal Law § 145.65) and Possession of Graffiti Instruments (Penal Law § 145.65) stemming from allegations that on October 6, 2024, they spray painted graffiti at various locations on SUNY New Paltz Campus with phrases such as "Your Tuition Funds Genocide" and "Free Gaza" and posted two posters containing similar statements. Two suspects wearing black coats with black hoods and black surgical masks were observed on surveillance video. A patrol officer observed two individuals matching the suspects' descriptions and ordered them to stop walking. The patrol officer smelled the strong odor of spray paint on the suspects, one suspect had spray paint on their clothing, and other suspect was carrying a shopping bag containing several cans of spray paint. The suspects, identified as defendants herein, were arrested and issued appearance tickets. Defendants were also issued "persona non grata" letters and advised not to return to campus lest they be subject to arrest for criminal trespass. Defendants now move to dismiss the indictment….
The "Making Graffiti" statute provides:
- For purposes of this section, the term "graffiti" shall mean the etching, painting, covering, drawing upon or otherwise placing of a mark upon public or private property with intent to damage such property.
- No person shall make graffiti of any type on any building, public or private, or any other property real or personal owned by any person, firm or corporation or any public agency or instrumentality, without the express permission of the owner or operator of said property.
The court rejected the claim that this violated the First Amendment:
[T]he statute is content neutral and prohibits an activity unrelated to the content of expression, the statute instead prohibits the destruction of personal and private property….
Unlike the city ordinance discussed in Tuscan v City of Seattle (W.D. Wash. 2024), relied upon by defendants, Penal Law § 145.60 requires that an individual intend to damage the property upon which they have made the graffiti. In Tuscan, a person was guilty of property destruction under the city's ordinance if they intentionally wrote, painted or drew on any public or private building, structure, real or personal property, regardless of whether they intended to damage the property or not. Thus, under that ordinance, any act that was intentional, such as a child intentionally drawing a rainbow on the sidewalk with chalk without permission, could be determined to be property destruction.
Under Penal Law § 145.60, it is not the mere intentional act of placing graffiti onto another's property without permission that constitutes the crime, but the culpable mental state of intending to damage that property in the process. "Damage implies an injury or harm to property that lowers its value or involves loss of efficiency. Thus, an intent to damage may translate into an intent to injure or harm property by lowering its value or lessening its efficiency." The statute sufficiently outlines the conduct that it prohibits—marking another person's property without their permission, and "intent to damage" is understood to mean lowering the property's value or loss of its efficiency. Considering these elements together, defendants had adequate notice and law enforcement sufficient guidance as to what activity is prohibited. The statute is neither overly board nor unconstitutionally vague….
While defendants have a constitutional right to engage in political speech, that privilege does "not guarantee the right to communicate one's views at all times and places or in any manner that may be desired." "Nothing in the Constitution commands that dissemination of all forms of speech at all times on all kinds of property are absolutely protected under the First Amendment, without regard for the nature of the activity, the property or the disruption that might be engendered by unregulated expressive activity in certain circumstances." …
Assuming without deciding that that a SUNY campus is a traditional public forum, as discussed above, the "Making Graffiti" statute is content neutral and is narrowly tailored to serve a legitimate government purpose. Defendants have numerous other means to express their concerns that do not involve spray painting that message on campus property. Defendants have failed to demonstrate that the statute was discriminately applied to them based upon their viewpoint.
And the court held that defendants' weren't entitled to a jury instruction on the necessity defense recognized by N.Y. statute:
A justification defense applies "when conduct that would otherwise have been criminal 'is necessary as an emergency measure to avoid an imminent … injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor,' and the threatened injury is so grave as to outweigh the harm resulting from the actor's conduct." Courts in New York have consistently denied application of the defense of justification by necessity in cases involving defendants who have engaged in civil disobedience.
Defendants['] conduct, spray painting statements on campus property, with the intention of prompting the university to change its financial and/or investment policies as it may relate to the armed conflict in Gaza cannot be considered to have been reasonably calculated to prevent any harm to the people in Gaza suffering from the armed conflict. As such, defendants' act of civil disobedience was not "necessary as an emergency measure" to prevent harm to the people in Gaza….
