Andrew Wenzel The ongoing lawsuit of a student from SUNY Purchase raises questions about the constitutionality of section 240.31 (3) of the New York Criminal Law.In application of a crime complaint filed on 11 December 2018 in Harrison City Court, 18-year-old student of SUNY Purchase posted several leaflets containing swastikas and other symbols of Nazi Germany on bulletin boards on campus. SUNY during the Hanukkah Jewish festival. The prosecution further claimed that the defendant did so with the intention of arousing the alarm, fear and annoyance of members of the university community. The media reported that the leaflets displayed an image of Adolph Hitler with a swastika in the background and the phrase "Do not be silly, do the clever / Come join the Nazi party," excerpt from a song from Mel Brooks' satirical comedy, "The Producers." For these acts, the government has accused the student of aggravated harassment. in the first degree (New York Penal Law §240.313), a class E crime. PL 240.31 (3) provides, in the relevant part, as follows: A person is guilty of aggravated harassment at first degree when a person is guilty of aggravated harassment. she intends to harass, annoy, embarrass, threaten or alarm another person because of a belief or perception as to her race, color, or origin nationality, descent, sex, religion, religious practices, age, disability or sexual orientation, that this belief or perception is accurate, that it … places a swastika, commonly the emblem of Nazi Germany, on any building or other real estate, public or private … without the express permission of the owner or the operator of this building or such real estate. Because this status infringes the content but its specific point of view, it can to violate the first amendment of the American constitution. The United States Supreme Court has reviewed the constitutionality of two similar laws in two separate cases: R.A.V. v. City of St. Paul, Minnesota505 US 377 (1992) and Virginia v. Black538 US 343 (2003). The ordinance in R.A.V. has been found unconstitutional, while the relevant part of the law in Black was found constitutional.

Order "R.A.V. not in accordance with the Constitution »

In R.A.V., a minor has committed the despicable act of burning a cross in the fenced yard of an African-American family. The government has accused young people of violating the ordinance on crimes motivated by the bias of Saint-Paul, which provided as follows: "Whoever affixes to a public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, an inflamed cross or Nazi swastika , that we know or that we have reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, beliefs, religion or sex, commits disorderly conduct and is guilty of an offense. " Ordinance on crimes motivated by the partiality of Saint Paul, Saint Paul, Minn. Legis. Code §292.02 (1990). The Supreme Court ruled that the order was unconstitutional because it also prohibited the authorized speech on the sole basis of the topics discussed and that the "First Amendment did not allow the government to impose prohibitions speakers who express points of view on disadvantaged subjects. "Id. 391. Since the ordinance punished only those who burned a cross or displayed a swastika to express a point of view that the government considered offensive and did not punish those who engaged in the same behavior to express others. opinions, it was unconstitutional. . As the RA.V. According to the recognized opinion, the ordinance of St. Paul would not punish those who burn a cross to "express hostility on the basis of political affiliation, belonging to a union or homosexuality ". Therefore, the order was invalid as discrimination of point of view.

The status "black" is respected

Conversely, in Black, the court, ruled that a Virginia law (VA Code Ann.§18.2-423 1996) prohibiting cross-burning with the "intent to intimidate a person or a group of people" would did not violate the first amendment because the law prohibited threatening behavior as opposed to expressing one's point of view. The court reaffirmed the principle that the government, in accordance with the First Amendment, could regulate and punish certain categories of expression such as "opposing words" (see Chaplinksy c. New Hampshire315 US 568 1942), "plea to induce unlimited unlimited action" (Brandenburg c. Ohio395 US 444 1969) and, applicable to the facts of the Black, "Real Threats". A "real threat" occurs when the "speaker intends to communicate the serious expression of his intention to commit an illegal act of violence against a particular person or group of individuals". Black, 538-359. After telling the story and the violent symbolism of the crossfire, the court found that the fire of a cross for the purpose of l & # 39; 39, to intimidate, that he presumed to be a threat to a person with the intention of placing fear of bodily harm or death, "would constitute a" real threat "and could therefore be proscribed. As the court has made clear, the government can outlaw the real threats of "protecting people from the fear of violence" and "against the disruption that fear engenders". Black recognized that burning crosses is often expressive behavior, but stressed that under the law, such behavior is not prohibited except for the purpose of intimidating . The court also pointed out that in choosing to prohibit speeches constituting a "real threat," the government could not prohibit only a sub-paragraph of the threatening speech or expressive behavior because it was aimed at a subject that the government disavowed. The court gave the following example: "The government, in accordance with the First Amendment, can only criminalize threats of violence against the president, but it can only incriminate threats of violence against the president." 39 against the president who mention his policy of helping disadvantaged neighborhoods. . "Similarly, in R.A.V., the court pointed out that, although the government may prohibit "fighting words" in general, it should not prohibit only the words of combat expressing an unfavorable opinion. R.A.V., 505 United States to 384. The story continues

"Rav" and "Black" Distinguished

At first glance, the holding of Black seems to contradict the holding of R.A.V.: the first ruled that a law prohibiting the burning of a cross was constitutional; the latter argued that it was not. However, the cases are easily distinguishable. In Blackthe law was constitutional because it punished all burners who intended to intimidate anyone, regardless of the reason for the intimidation. As such, the government limited a type of "real threat" – a proscribed class of speech – in a manner that was neutral from the point of view. On the other hand, the order at issue in the case R.A.V. only the punished counterfeits who acted in this way expressed a shocking view that the government disapproved. Criminal law, §240.31 (3), is analogous to the unconstitutional order of R.A.V., in that the law criminalizes expressive conduct (although extremely offensive) based on a point of view that the government disavows; that is, harass, annoy, alarm or threaten another person based on race, color, national origin, descent, sex, religion, religious practice, age, disability or sexual orientation. however, New York law does not prohibit the posting of a swastika for the purpose of harassing a person because of his or her political affiliation (including membership in the Nazi Party), membership of a trade union or any other reason not specified in the law. See, for example, R.A.V., 505 United States to 391 ("The government does not have the power to allow any part of a debate to fight the free style, while forcing the other to follow the rules Marquis of Queensberry. ") It can be argued that §240.31 (3) only criminalizes" real threats ". , "And so is constitutional, but that argument would likely fail." Unlike the law in question in Black, §240.31 criminalizes the much broader category of conduct perpetrated with "intent to harass, embarrass, threaten or alarm another person". Attempting to threaten another person would probably be called a "real threat" because it is a serious expression of intention to commit unlawful acts of violence, intent to cause embarrassment or the alarm is certainly not a "real threat" in the sense that the Supreme Court has defined it, which has made the law too cumbersome.

The SUNY case

The allegations in the SUNY Purchase case illustrate this point. The leaflet allegedly posted by the Respondent, while undoubtedly offensive and certain to annoy and alarm the members of the University community, does not appear to constitute a "real threat" in the constitutional sense of the phrase: In any event, even though the law only prohibits speeches that constitute a "real threat," the government can not choose to ban only a subset of these proscribed speeches. , based on an unfavorable point of view. . See R.A.V., 505 United States of America at 386. None of these elements allow us to say that SUNY must authorize the display of swastikas on all campus sites: SUNY, as the owner of the buildings, may limit the display of signs to the prescribed areas of the campus. Such a prohibition would have nothing to do with the limitation by the government of the content of the message; the fact that it may further undermine the freedom of expression does not render it unconstitutional. See, for example, Perry Educ. Ass & # 39; n v. Perry Ass & # 39; n local educators, 460 US 37, 45 (1983) ("The State may also apply neutral rules on the content of date, place and mode of expression, which are narrowly designed to serve a significant governmental interest and leaving many other communication channels open, and SUNY can, to a certain extent, authorize the display of signs in specific areas, but limit the content or purpose of the signs, as long as this does not limit particular point of view, see, for example, Rosenberger c. Rector and Visitors of the Univ. from Va., 515 US 819, 829-30 (1995) ("To determine if the state is acting to preserve the boundaries of the forum that it has created so that the exclusion of a language class is We have made a distinction between, on the one hand, content-based discrimination, which can be accepted if it preserves the objectives of this restricted forum, and, on the other hand, discrimination based on the viewpoints which is presumed to be inadmissible when it is directed against another word within the confines of the forum. "). In an attempt to avoid any constitutional infirmity, the legislator could amend this section of the Criminal Law to reflect Virginia's constitutional law. Perhaps burning a cross is a particularly malicious form of intimidation, it may be that the display of a swastika and other Nazi props has "a long and pernicious story as a signal of imminent violence. " Black, 538 United States of America to 363. First expert, Eugene Volokh argued that a law criminalizing the publication of swastikas in order to intimidate any person or group of persons Black, to be constitutional. See Eugene Volokh, Hate speech "unconstitutional in New York, December 12, 2018. The argument would be that such a status is neutral from one point of view to the other and is limited to "real threats" of violence. If New York adopts the hypothetical law, the argument would be whether, in the context of our country's history, the swastika, like the burning of a cross, is "inextricably linked" to the impending violence. See Black, 538 US at 352-357.However, although SUNY allows some political clubs to post their circulars around the campus or on designated parts of the campus, it would appear that it is forced to authorize Circulars for all political groups, even groups or circulars, that the majority of members of the university and society find the offensive. Indeed, it is the essence of freedom of expression. As the Supreme Court has stated, "if the First Amendment is based on a fundamental principle, it is that the government can not prohibit the expression of an idea simply because the society the finds herself shocking or unpleasant ". Texas v. Johnson, 491 US 397, 414 (1989) .If the SUNY case gives rise to a post-trial conviction for violation of §240.31 (3), the New York Courts of Appeal will undoubtedly be confronted with these constitutional questions. Andrew Wenzel is the lead counsel for the Hon. William M. Harrington, Acting Judge of the Supreme Court, Kings County, Penalty.