The Volokh Conspiracy - Putting Up "Whites Only" Sign on City Drinking Fountain = Felony?

Yesterday's Buffalo News reports:

It didn't take long for the city worker accused of putting a "whites only" sign on a public works drinking fountain to realize it was a really bad idea....

[James] Curtis, 52, of 80th Street, a 26-year employee in the Public Works Department, told police before his arrest last Friday that he took down the sign after he realized he might get in trouble.

By that time, an African-American co-worker had photographed it with his cell phone.

Curtis said he confessed last week to posting the sign because his conscience got the better of him, although not before he lied about his involvement when first confronted by Detective Frank Coney.

"I lied because I was scared," Curtis said in court papers reviewed by The Buffalo News after the motor equipment operator's arraignment Tuesday in City Court.

Last Friday, Curtis told Coney and David Kinney, the city's director of public works and parks, that the sign was a joke.

"It wasn't racial," he said. "I didn't do it to be mean, and it's been eating me up." ...

He told police he had hand-written the sign, which read "whites only drinking fountain" in upper and lower case letters, on the back of a time card....

Curtis pleaded not guilty to second-degree aggravated harassment, which normally is a misdemeanor.

But city police, who filed the charge Friday, categorized it as a racially motivated hate crime, which bumps up the charge to a Class E felony....

The relevant statute seems to be N.Y. Penal Law § 240.30, which reads in relevant part, "A person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she: ... communicates with a person ... in a manner likely to cause annoyance or alarm." I take it that the theory here is that the sign was intended to harass, annoy, or alarm, and conveyed in a manner likely to cause annoyance or alarm.

The statute, though, seems to be unconstitutionally overbroad, and a violation of the First Amendment, at least if it's interpreted broadly enough to cover speech such as this. Curtis could surely be fired for putting up the sign, even if it's a joke — the sign clearly interferes with the effective functioning of the workplace. Government employees generally aren't entitled to post material on government property that make government facilities unpleasant for coworkers, or members of the public. But I don't think it's constitutional to criminally punish someone for such a posting, especially under such a broad content-based statute, which isn't limited to government employees or government property.

	[Eugene Volokh, September 4, 2008 at 7:31pm] Trackbacks Putting Up "Whites Only" Sign on City Drinking Fountain = Felony? Yesterday's Buffalo News reports: It didn't take long for the city worker accused of putting a "whites only" sign on a public works drinking fountain to realize it was a really bad idea.... [James] Curtis, 52, of 80th Street, a 26-year employee in the Public Works Department, told police before his arrest last Friday that he took down the sign after he realized he might get in trouble. By that time, an African-American co-worker had photographed it with his cell phone. Curtis said he confessed last week to posting the sign because his conscience got the better of him, although not before he lied about his involvement when first confronted by Detective Frank Coney. "I lied because I was scared," Curtis said in court papers reviewed by The Buffalo News after the motor equipment operator's arraignment Tuesday in City Court. Last Friday, Curtis told Coney and David Kinney, the city's director of public works and parks, that the sign was a joke. "It wasn't racial," he said. "I didn't do it to be mean, and it's been eating me up." ... He told police he had hand-written the sign, which read "whites only drinking fountain" in upper and lower case letters, on the back of a time card.... Curtis pleaded not guilty to second-degree aggravated harassment, which normally is a misdemeanor. But city police, who filed the charge Friday, categorized it as a racially motivated hate crime, which bumps up the charge to a Class E felony.... The relevant statute seems to be N.Y. Penal Law § 240.30, which reads in relevant part, "A person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she: ... communicates with a person ... in a manner likely to cause annoyance or alarm." I take it that the theory here is that the sign was intended to harass, annoy, or alarm, and conveyed in a manner likely to cause annoyance or alarm. The statute, though, seems to be unconstitutionally overbroad, and a violation of the First Amendment, at least if it's interpreted broadly enough to cover speech such as this. Curtis could surely be fired for putting up the sign, even if it's a joke — the sign clearly interferes with the effective functioning of the workplace. Government employees generally aren't entitled to post material on government property that make government facilities unpleasant for coworkers, or members of the public. But I don't think it's constitutional to criminally punish someone for such a posting, especially under such a broad content-based statute, which isn't limited to government employees or government property.