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Poetry in the Public Square—Free Speech or Vandalism?

“A poet’s work is to name the unnamable, to point at frauds, to take sides, start arguments, shape the world, and stop it going to sleep.”—Salman Rushdie

A heated argument broke out at a city council meeting one night over an issue that had polarized the community. After hours of debate, and much acrimonious wrangling among the council members and citizens in attendance, a vote was finally taken. Citizens on both sides of the issue wearily started home but were startled by the sight of Charley, a well-known local poet, painter and town philosopher, carefully inscribing his condemnation of city council members on the side of the town hall building. A town official demanded that police arrest Charley for vandalizing the government building, a felony under Ohio laws. “But I’m a poet!” he declaimed, “I must answer my muse!”

A defense attorney might better argue that Charley had a constitutional right of free speech which protected his right to condemn the city council’s decision on the walls of the town hall.

Does a citizen’s constitutional guarantee of free speech protect Charley from being prosecuted for felony vandalism in Ohio?

Ohio’s vandalism statute makes it illegal to knowingly:

  • cause serious physical harm to a structure that is occupied or to any of its contents
  • cause physical harm to a property that belongs to someone else.
  • cause serious physical harm to a property that is owned, controlled or leased by the government, like the public school building, university building, etc.
  • cause serious harm, without permission to, a memorial of the dead- like a tomb or a gravestone.
  • break into and cause harm to a place of burial- like a tomb or a crypt
  • drop or throw any object at, onto, or in the path of any of vehicle, trolley, streetcar or boat (a misdemeanor)

If free speech is permitted as a defense at Charley’s trial, the jury can certainly consider it.

In a recent California case the court ruled that a free speech defense would not be permitted where a defendant chalked anti-bank slogans on bank properties because the only relevant jury question was whether or not vandalism was committed, not the defendant’s motives in committing the vandalism. The San Diego jury acquitted the defendant, anyway.

If an Ohio judge were to similarly prohibit a First Amendment defense, what defenses can Charley assert in the Buckeye state to felony vandalism charges? On these facts, Charley can only be charged for causing serious harm to government property, so the question is whether his public penmanship on the town hall legally constituted “serious physical harm”?

The vandalism statute defines “serious physical harm” as physical harm to property that results in loss to the value of the property of one thousand dollars or more. This means that the prosecutor must prove beyond a reasonable doubt that Charley’s political graffiti caused at least one thousand dollars in damage to the town hall.

Ultimately this is a question of fact for the jury to decide. Skilled and experienced criminal vandalism attorneys, such as the highly regarded defense team at Yavitch & Palmer Co., can propose alternatives besides criminal prosecution such as pretrial diversion if the jurisdiction permits it, and if not, can mount most compelling defenses at trial.

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