The Volokh Conspiracy - "The Assassination of Hillary Clinton" / "The Assassination of Barack Obama":

The New York Times blog reports:

This morning, a Boston-born performance artist, Yazmany Arboleda, tried to set up a provocative art exhibition in a vacant storefront on West 40th Street in Midtown Manhattan with the title, "The Assassination of Hillary Clinton/The Assassination of Barack Obama," in neatly stenciled letters on the plate glass windows at street level.

By 9:30 a.m., New York City police detectives and Secret Service agents had shut down the exhibition, and building workers had quickly covered over the inflammatory title with large sheets of brown paper and blue masking tape. The gallery is across the street from the southern entrance to The New York Times building.

The police officers declined to answer any questions, and at first would not permit reporters to speak with Mr. Arboleda, who was wearing a black T-shirt and making cellphone calls from inside the makeshift gallery.

Later, Mr. Arboleda, who is 27, said in an interview: "It's art. It's not supposed to be harmful. It's about character assassination — about how Obama and Hillary have been portrayed by the media." He added, "It's about the media."

Mr. Arboleda said the exhibition was to open on Thursday and run all day.

The interview was abruptly ended as Mr. Arboleda was led off to the Midtown South police precinct station for what he called an interrogation....

Mr. Arboleda has even set up elaborate Web sites, one for Mrs. Clinton and one for Mr. Obama.

Shortly after 11:30 a.m., Mr. Arboleda called reporters to let them know that he had been released....

I appreciate that the Secret Service have an important and difficult job to do, but based on this account -- and I realize that it may be in error or incomplete -- it seems to me they went beyond what is allowed. It makes sense that they would have talked to Arboleda, and tried to figure out what he was doing in the storefront. They could well have decided to watch him for the duration of the exhibition and after. But I don't see that there was probable cause to believe he had committed a crime, which was what it would take to do more than briefly stop him and talk to him (a brief stop requires only reasonable suspicion).

Nor would there be probable cause to detain him if he had told them that he just wanted to go on setting up his exhibition, and didn't want to talk further to them (though again there may have been ample reason to watch him closely). Using the words "the assassination of Hillary Clinton" isn't a crime. Making threats is a crime, but I see no way how there could be probable cause to see the writing as an actual threat (as opposed to something that merits some questions and more watching).

Now perhaps the removal and two-hour interview of Arboleda was consensual, in which case no probable cause was required. But from the newspaper report that doesn't seem especially likely.

Note that "Special Agent Eric P. Zahren, a spokesman for the Secret Service in Washington, emphasized in a telephone interview that the agency did not seek to shut down the show. 'We did not shut down that exhibit or request that anybody else shut it down,' Agent Zahren said. 'This was brought to our attention, we went out there and had a conversation with the individual, but we did not shut it down.'"

	[Eugene Volokh, June 4, 2008 at 11:05pm] Trackbacks "The Assassination of Hillary Clinton" / "The Assassination of Barack Obama": The New York Times blog reports: This morning, a Boston-born performance artist, Yazmany Arboleda, tried to set up a provocative art exhibition in a vacant storefront on West 40th Street in Midtown Manhattan with the title, "The Assassination of Hillary Clinton/The Assassination of Barack Obama," in neatly stenciled letters on the plate glass windows at street level. By 9:30 a.m., New York City police detectives and Secret Service agents had shut down the exhibition, and building workers had quickly covered over the inflammatory title with large sheets of brown paper and blue masking tape. The gallery is across the street from the southern entrance to The New York Times building. The police officers declined to answer any questions, and at first would not permit reporters to speak with Mr. Arboleda, who was wearing a black T-shirt and making cellphone calls from inside the makeshift gallery. Later, Mr. Arboleda, who is 27, said in an interview: "It's art. It's not supposed to be harmful. It's about character assassination — about how Obama and Hillary have been portrayed by the media." He added, "It's about the media." Mr. Arboleda said the exhibition was to open on Thursday and run all day. The interview was abruptly ended as Mr. Arboleda was led off to the Midtown South police precinct station for what he called an interrogation.... Mr. Arboleda has even set up elaborate Web sites, one for Mrs. Clinton and one for Mr. Obama. Shortly after 11:30 a.m., Mr. Arboleda called reporters to let them know that he had been released.... I appreciate that the Secret Service have an important and difficult job to do, but based on this account -- and I realize that it may be in error or incomplete -- it seems to me they went beyond what is allowed. It makes sense that they would have talked to Arboleda, and tried to figure out what he was doing in the storefront. They could well have decided to watch him for the duration of the exhibition and after. But I don't see that there was probable cause to believe he had committed a crime, which was what it would take to do more than briefly stop him and talk to him (a brief stop requires only reasonable suspicion). Nor would there be probable cause to detain him if he had told them that he just wanted to go on setting up his exhibition, and didn't want to talk further to them (though again there may have been ample reason to watch him closely). Using the words "the assassination of Hillary Clinton" isn't a crime. Making threats is a crime, but I see no way how there could be probable cause to see the writing as an actual threat (as opposed to something that merits some questions and more watching). Now perhaps the removal and two-hour interview of Arboleda was consensual, in which case no probable cause was required. But from the newspaper report that doesn't seem especially likely. Note that "Special Agent Eric P. Zahren, a spokesman for the Secret Service in Washington, emphasized in a telephone interview that the agency did not seek to shut down the show. 'We did not shut down that exhibit or request that anybody else shut it down,' Agent Zahren said. 'This was brought to our attention, we went out there and had a conversation with the individual, but we did not shut it down.'"