Littering or a hate crime?

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Va Beach man arrested for grafitti

There is no doubt that the website the stickers directed people to is odious and hateful, but are they free speech?

He has been charged under Norfolk’s graffiti ordinance, which is punishable by up to one year in prison.

There is no doubt placing stickers on public property, or private property without the permission of the owner, is defacement of the property, but is it a greater crime to place these neo-nazi advertisements than it would be to place Black Lives Matter tags or Pizza ads?

Published by Don Tabor

I am a former Chairman of the Tidewater Libertarian Party and was the 2007 LP candidate for the 14th district VA Senate. Previously, I was the Volunteer State Director for the FairTax. I am married 50 years with two grown children and 5 grandchildren.

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8 thoughts on “Littering or a hate crime?”

  1. A year? Ya know, that would be fair if the same sentence were applied to those political ads that pop up on medians and other public spaces and left for weeks past Election Day, or worse placed in a yard without permission.

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  2. You have asked two questions that require different answers:

    Can property defacement be included in protected speech?
    Can odious speech be made illegal?

    The first question is easy to resolve by noting, simply, that there is no conceivable right to do wrong. Since defacing someone else’s property is a wrong in itself, it is severable from protected speech.

    The answer to the second question is obviously yes, the law can define odious speech as a crime, but doing so is problematic. You might say that odious speech is a form of wrongdoing, and there is no shortage of rational explanations for saying so. So far, so good.

    Now consider the remedy for the harm. With property defacement, the harm is easy to define and measure using objective means for the purpose of establishing an equitable remedy. With odious speech the harm may be largely subjective or highly variable across instances, such that the remedy cannot be so easily specified in principle. Because of this, the law literally has no standard way to proceed against the harm that odious speech wrongly causes. The law may convict, but it must also sentence.

    In light of all that I would say that odious speech is not severable from protected speech as a matter of law in theory. In practice, of course, the law can be written in any way the state wishes. In practice, burning at the stake may be specified as the remedy for blasphemy, but I can’t imagine how such a remedy can be justified.

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    1. Under our Constitution, I don’t think the government can legally differentiate between one opinion or another based on the popularity of the sentiment.

      Yes, posting graffiti on public or private property can be a crime, but I don’t think our Constitution allows government to differentiate between odious or popular opinion, or pizza advertisements. If it does, we do not have free speech.

      Aside from which, the graffiti in this case was QR code which led to an offensive website, but the graffiti itself was not odious.

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      1. Odious speech is protected from government interference. But if a message is “kill all retired dentists” and here is a website to show you why and how, we have a public safety issue.

        Graffiti is vandalism and is already illegal.

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        1. Yes, graffiti is already illegal, but the question remains, will the penalty be the same for putting up these QR codes be the same as for the BLM, ACAB and other political graffiti or, for that matter, pizza ads?

          If not, then what is the justification and rational under the Constitution.

          We already know that the Norfolk police have invested a great deal of effort in finding the perpetrator, will they pursue the BLM taggers as intensely, and if not, why not?

          Is some opinion OK and other not?

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          1. Any graffiti is unlawful. Yard signs on public property are illegal, too.

            Perhaps the Nazi defense will be “Wah, wah, BLM did it too. Mommy…”.

            Life is not fair, as I have been reminded innumerable times.

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          2. RE: “will the penalty be the same for putting up these QR codes be the same as for the BLM, ACAB and other political graffiti or, for that matter, pizza ads?”

            It seems to me that BLM speech is equally as odious as neo-Nazi speech. I wouldn’t necessarily be averse to prosecuting both, and imposing harsh penalties (e.g., public caning) for conviction.

            But since odious speech cannot be separated from protected speech under any valid legal argument I can think of, I have to conclude that neither BLM nor neo-Nazi speech can be prosecuted on the basis of its odiousness.

            More to the point: Since the 1st Amendment exists, the law cannot even begin to prosecute BLM and neo-Nazi speech.

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