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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 ยง 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.

Hoosier:
The "annoy" part amazes me. What could be broader than that?
9.4.2008 8:41pm
Prosecutorial Indiscretion:
I agree that the New York law appears unconstitutionally overbroad. On the other hand, given the history of violent racial segregation in this country, you could make a decent argument that the sign would intimidate someone because of their race, and thus under the circumstances make out a violation of 18 U.S.C. 245.
9.4.2008 8:46pm
JK:
I'm probably missing something, but how is placing a sign on someone else's property without permission (and is certain opposition to the property holder's wishes) constitutionally protected free speech? The statute certainly could be applied in an unconstitutional way, but my (rather distant) recollection is that courts will generally let this type of statute slide so long as it isn't applied unconstitutionally.

In other words, while perhaps facially unconstitutional, it doesn't seem to be unconstitutional as applied, so the facts of the case described don't seem to add a whole lot to the legal analysis.
9.4.2008 8:46pm
Big E:
"It wasn't racial," he said. "I didn't do it to be mean, and it's been eating me up."

You've got to be kidding me.
9.4.2008 8:48pm
Eugene Volokh (www):
JK: If the law neutrally banned all placements of signs on others' property without their permission, then it would be constitutionally permissible. But this law is not content-neutral, nor is it limited to placement of signs on others' property. (Plus you probably wouldn't want to neutrally criminalize government employees' placing any sort of sign on government property without express permission.) That's why it's facially unconstitutional, at least if it's interpreted broadly enough to apply to behavior such as that involved here -- as opposed to being interpreted to cover only, say, individually targeted fighting words, or harassing phone calls to targeted people's homes; the facts are relevant to show the breadth with which it's being interpreted.
9.4.2008 9:01pm
Repeal 16-17 (mail):
This idiot should be, and is morally deserving of being, fired. However, making this act criminal would be Unconstitutional. This law's vagueness violates the right to Free Speech and it violates the "vagueness doctrine."
9.4.2008 9:05pm
whit:
ridiculously overbroad. i tell people all the time (cause people are always calling police to complain about others being jerks to them) that the law protects being a jerk. clearly, this law in NY doesn't.

imo, if somebody is being annoying you tell them to knock it off. if they continue, then you get a court order prohibiting them from doing so. that gets a judge into the process. THEN, it should be criminal. before that, it's just a person being a jerk.

the law says this:
"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."

so, if a person has the intent to annoy a person he doesn't like, and stands outside the gym they both work out at , and when the guy exits the gym he says "you're a fat jerk" 3 times in a row, that would seem to meet the criteria of this statute. that's a CRIME!>?!?!?!?!

ridiculous.

the law should apply to "true threats". being a jerk and saying annoying things should NOT be criminal, nor imo is it constitutional to criminalize being a jerk.

i recall a case from college where some frat boys were sitting on their deck and as women rode by , they held up # signs (1-10 scale) rating them... now, is this obnoxious? yes. could the university discipline them? sure. should it be CRIMINAL? get real.
9.4.2008 9:10pm
Mike Naught Relevant (mail) (www):
I am a Police officer and am sometimes called to deal with these types of issues. As the Police we are called to investigate breaches of government rules like this.

It is tough to handle this because we as the Police are being used investigate things that in the private sector would be looked at by some human resources flak.

He should be fired unless he targeted someone specific, in which case he should be prosecuted.

Just my .02
9.4.2008 9:17pm
Nunzio:
I thought facial challenges were pretty much on their way out.
9.4.2008 9:17pm
Bruce Hayden (mail) (www):
I'm probably missing something, but how is placing a sign on someone else's property without permission (and is certain opposition to the property holder's wishes) constitutionally protected free speech? The statute certainly could be applied in an unconstitutional way, but my (rather distant) recollection is that courts will generally let this type of statute slide so long as it isn't applied unconstitutionally.
Also note that this is a criminal government action against a government employee putting up the sign on government property. And the law seems far from content neutral as applied.

To some extent, this brings up the problem with "racially motivated hate crime" statutes - that by their very nature they are not content neutral, and are specifically designed to suppress certain speech (however odious).
9.4.2008 9:18pm
Bill Poser (mail) (www):
It sounds like the guy shouldn't even be fired. That's a severe sanction for someone who has been in a job for 26 years. Judging from the article it was just a stupid prank, he isn't likely to do it again, and it isn't part of a pattern of behavior. People really need to lighten up about this kind of thing. There are lots of more serious problems to get huffy about.
9.4.2008 9:19pm
Seamus (mail):

"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."



If this is constitutional, then Jerry Falwell should have won his lawsuit against Hustler.
9.4.2008 9:34pm
A. Zarkov (mail):
Evidentially when "race" get attached to "annoy" in these disorderly conduct statutes, the act somehow gets transformed into something really serious. So if this person had put up an authorized sign that said "global warming is bunk," that would be almost ok even if it annoyed someone. But if we can make global warming a racial issue by saying it has a disparate impact on blacks, then that too could get converted into some really serious. I see a slippery slope here.
9.4.2008 9:38pm
Seamus (mail):

On the other hand, given the history of violent racial segregation in this country, you could make a decent argument that the sign would intimidate someone because of their race, and thus under the circumstances make out a violation of 18 U.S.C. 245.



Really? You really think that non-whites would be afraid to drink at a fountain where someone had put up a hand-written "whites only drinking fountain" sign, because they'd be worried that someone might assault them, or have them arrested for violating the Jim Crow law in effect in Buffalo freaking New York?
9.4.2008 9:38pm
Dave N (mail):
I was curious as to how, as an earlier poster suggested, a law could be facially unconstititutional but constitutional as applied.

That aside, the city (or the county or whoever the prosecuting agency) is stupid to prosecute this as a felony. Had it been charged as a misdemeanor, the malefactor would have likely pled guilty thinking to himself, "Yeah, I did it and I was stupid to do it."

Now, as a felony, there will be lawyers involved--and unless the case quickly pleads out at the misdemeanor level, the city will have egg on its face, and perhaps be defending itself in a civil suit brought by the employee who made the idiotic sign.
9.4.2008 9:40pm
whit:
it shouldn't be prosecuted as a misdemeanor. it simply shouldn't be illegal.

it's being annoying with speech. big deal.
9.4.2008 9:51pm
R Gould-Saltman (mail):
"A person is guilty of aggravated harassment in the second degree when, with intent to . . . annoy. . . another person, he or she: ... communicates with a person ... in a manner likely to cause annoyance or alarm."

DARN! I raised an adolescent son in California for all those years (until this week, when we shipped him off to college in Ohio) without law enforcement intervention, when I coulda had him locked up every time he smarted off at me, if only we'd lived in New York?!? What was I thinking?
9.4.2008 10:11pm
Fub:
whit wrote at 9.4.2008 8:51pm:
it shouldn't be prosecuted as a misdemeanor. it simply shouldn't be illegal.

it's being annoying with speech. big deal.
A likely story. You're just saying that because I was getting ready to shuffle off to Buffalo and swear out a complaint on you -- for annoying me with your no-caps typing.

Seriously, although I've seen people charged under statutes prohibiting "annoying", I've never read a case or seen a statute that clearly defined the term. It's a catch-all so vague that it's applied to everything from looking at someone cross-eyed to flag waving.
9.4.2008 10:17pm
Arkady:

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



Perhaps a condign punishment, in lieu of firing, would be for him to have to eat the sign.
9.4.2008 10:31pm
Smokey:
Repeal 16-17:
This idiot should be, and is morally deserving of being, fired.
And he may well be fired. Or otherwise seriously disciplined.

See, he's a low level blue collar employee, so he'll probably take some kind of hit for his stupid prank. But if the mayor or a member of the city council did the same thing, there'd be a lot of arm-waving and bluster, talking heads on the news would opine, then things would settle down and nothing would ultimately happen to them. Because these days, the buck only stops with the little guy.
9.4.2008 10:37pm
Angus:
Definitely unconstitutional, either as a felony or as a misdemeanor. I, however, would not have fired a black employee for giving him an uppercut to the chin (not a severe beating). Plus, I'd fire the guy immediately.

Writing "Whites Only" on a sign and putting on a water fountain doesn't happen by accident.
9.4.2008 11:22pm
George Weiss (mail) (www):
agree with prosecutorial indiscretion-you might have a 18 usc 245 case (getting you around the constitutionally overbroad problem)

a) thats not the charge in this case
b) only the feds can prosecute a federal crime (even if the state arrests you for it)
c) that still doesn't get you around the first amendment
9.5.2008 1:18am
K:
The case seems so silly that possibly it is a provocation.

Curtis does something idiotic but after 26 years can probably retire anyway.

He faced a (very) marginally constitutional prosecution and may also be fired. Wrongful discharge?

Then he admits the act but pleads not guilty to a misdemeanor. Then the charge was boosted to a hate crime? Who saw that coming?

His African-American co-worker may also be a victim and collect from the city.

I think Global Warming may have affected the water from that drinking fountain.
9.5.2008 1:50am
Tony Tutins (mail):
Does making the sign prove the state of mind? He might have done it in an idle fancy, like a doodle. Sometimes one's mind is completely disengaged. Maybe a segregation picture from his youth popped into his mind, the water fountain looked just like the one he remembered, and he suddenly felt like reproducing the scene. When we were children, bored in school, we all practiced making swastikas. Sometimes we got them backwards, so the pinwheel went the other way. We were not anti-Semitic. Some of the talented members of the class could make hangman's nooses out of the windowshade cords. None of us were trying to evoke lynch mobs.
9.5.2008 3:06am
Harland Hirst (mail):
The law is what you will make of it, but here is a more important question.

Why is severance the best available option? Why would we not instead take at face value his contrition and note in his HR file that this has happened. With respect to those who are offended at the placement of the sign two questions arise: Is it real, did Jim Crow reach Buffalo, or, who is the jerk pulling my chain.

All of us (meaning me and many others) at times have thought we are witty to the point of tears, and only in retrospect realize others see us as just mean. The line of human foibles is long and didn't start with this guy.

After his community service or suspended sentence, he should be brought into the HR office and sign papers admitting his actions and hopefully get on with the rest of his life.
9.5.2008 3:48am
Dave N (mail):
I want to make clear that I think it is unconstitutional at either the misdemeanor or the felony level--but at the misdemeanor level the miscreant is likely not to face jail time and not have counsel--as a result he will plead because he thinks he did something wrong--and with absolutely no constitutional analysis.

At the felony level, his attorney MIGHT convince him to plead out at the misdemeanor level simply because the attorney has a lot of cases and it disposes of the case quickly--even if he is relatively sure that he will prevail on appeal.

By the way this kind of conversation between defense counsel and clients happens all the time in criminal law: "I am pretty sure we will win, but the risk is a felony conviction if I am wrong. This way, the case is treated kind of like a traffic citation and we can get on with our lives. But it is up to you."
9.5.2008 4:09am
Helene Edwards (mail):
Why don't we identify the real interest here? Since the others in the play, and VC readers as well, have lives that are as sub rosa exclusionary as this guy's sign was overt, pouncing on him invests them with some non-racist credentials. Meanwhile, anyone have any idea how real black people define racism? See, it's whether you spend any time with them. They don't make the left-right distinctions you make among yourselves.
9.5.2008 3:42pm