Andrew Wenzel

 The pending prosecution of a SUNY Purchase student raises questions about the constitutionality of §240.31(3) of the New York Penal Law.

According to a felony complaint filed on Dec. 11, 2018, in the town court of the Town of Harrison, an 18-year-old student at SUNY Purchase posted multiple flyers containing swastikas and other symbols of Nazi Germany on bulletin boards on the SUNY campus during the Jewish festival of Hanukkah. The prosecution further alleged that the defendant did so with the intent to cause alarm, fear, and annoyance to members of the campus community.

Media outlets have reported that the flyers displayed a picture of Adolph Hitler with a swastika in the background and the phrase “Don’t be stupid, be a smarty/Come and join the Nazi Party,” which is a lyric from a song in Mel Brooks’ satirical comedy movie, “The Producers.” For these acts, the government charged the student with Aggravated Harassment in the First Degree (NY Penal Law §240.31[3]), a class E felony.

PL 240.31(3) provides, in relevant part, as follows:

A person is guilty of aggravated harassment in the first degree when with intent to harass, annoy, threaten or alarm another person, because of a belief or perception regarding such person’s race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, regardless of whether the belief or perception is correct, he or she…places a swastika, commonly exhibited as the emblem of Nazi Germany, on any building or other real property, public or private…without express permission of the owner or operator of such building or real property.

Because this statute criminalizes speech based not only its content but its specific viewpoint, it may violate the First Amendment of the U.S. Constitution.

The U.S. Supreme Court has examined the constitutionality of two similar laws in two separate cases: R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377 (1992) and Virginia v. Black, 538 U.S. 343 (2003). The ordinance in R.A.V. was held unconstitutional, while the relevant portion of the statute in Black was held to be constitutional.

‘R.A.V.’ Ordinance Held Unconstitutional

In R.A.V., a juvenile committed the despicable act of burning a cross inside the fenced yard of an African-American family. The government charged the youth with violating the St. Paul Bias-Motivated Crime Ordinance, which provided as follows: “Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.” St. Paul Bias-Motivated Crime Ordinance, St. Paul, Minn. Legis. Code §292.02 (1990).

The Supreme Court found that the ordinance was unconstitutional because it prohibited otherwise permitted speech solely on the basis of the subjects the speech addresses and that the “First Amendment did not permit [the government] to impose special prohibitions on those speakers who express views on disfavored subjects.” Id. at 391. Because the ordinance singled out for punishment only those who burned a cross or posted a swastika to express a certain viewpoint that the government deemed offensive, and did not punish those who engaged in the same conduct to express other opinions, it was unconstitutional. As the RA.V. opinion recognized, the St. Paul ordinance would not punish those who burned a cross to “express hostility on the basis of political affiliation, union membership, or homosexuality.” Therefore, the ordinance was invalid as viewpoint discrimination.

‘Black’ Statute Upheld

Conversely, in Black, the court, held that a Virginia statute (VA Code Ann. §18.2-423 1996) banning cross burning with “the intent of intimidating a person or group of persons” did not violate the First Amendment, as the statute proscribed a type of threatening conduct as opposed to the expression of viewpoint. The court reaffirmed the principle that the government, consistent with the First Amendment, may regulate and punish certain categories of expression such as “fighting words,” (see Chaplinksy v. New Hampshire, 315 U.S. 568 [1942]), “advocacy seeking to and likely to incite limitless lawless action,” (Brandenburg v. Ohio, 395 U.S. 444 [1969]) and, applicable to the facts of Black, “true threats.” A “true threat” arises when the “speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Black, 538 U.S. at 359.

After recounting the history and violent symbolism of cross-burning, the court determined that the burning of a cross with the intent to intimidate, which the court presumed to mean “a threat to a person with the intent to place them in fear of bodily harm or death,” would qualify as a “true threat” and may, therefore, be proscribed. As the court made clear, the government may prohibit true threats to “protect individuals from the fear of violence” and “from the disruption that fear engenders.”

The court in Black recognized that cross-burning is often expressive conduct but pointed out that under the statute such conduct was not prohibited unless done with the intent to intimidate. The court further stressed that in electing to ban speech that constitutes a “true threat” the government may not prohibit only a subsection of the threatening speech or expressive conduct because it is directed toward a topic that the government disfavors.

To illustrate the point, the court gave the following example: “The government, consistent with the First Amendment, can criminalize only those threats of violence that are against the President, but it cannot criminalize only those threats of violence against the President that mention his policy on aid to inner cities.” Similarly, in R.A.V., the court stressed that while the government may ban “fighting words” in general, it may not ban only those fighting words that express a disfavored opinion. R.A.V., 505 U.S. at 384.

‘Rav’ and ‘Black’ Distinguished

At first glance, the holding of Black seems to contradict the holding of R.A.V.: the former held that a statute prohibiting the burning a cross was constitutional; the latter held it was not. However, the cases are readily distinguishable. In Black, the law was constitutional because it punished all cross-burners who intended to intimidate anyone, regardless of the reason behind the intimidation. As such, the government was limiting a type of “true threat”—a class of proscribable speech—in a viewpoint-neutral way. On the other hand, the ordinance at issue in R.A.V. only punished cross-burners who did so to express an offensive viewpoint of which the government disapproved.

Penal Law §240.31(3) is analogous to the unconstitutional ordinance in R.A.V., in that the statute criminalizes expressive conduct (albeit extremely offensive conduct) based on a viewpoint the government disfavors; namely, to harass, annoy, alarm, or threaten another based on the person’s race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation. However, the New York statute would not proscribe the act of posting a swastika with the intent to harass someone because of their political affiliation (including membership in the Nazi party), union membership, or for any other reason not outlined in the statute. See, e.g., R.A.V., 505 U.S. at 391 (“The government has no authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules.”)

It may be argued that §240.31(3) criminalizes only “true threats,” and thus is constitutional, but that argument would likely fail. Unlike the statute at issue in Black, which was limited to criminalizing conduct done with the specific intent to intimidate, §240.31 criminalizes the much broader category of conduct done with “intent to harass, annoy, threaten or alarm another person.” While intending to threaten another would likely be characterized as a “true threat” because it is a serious expression of intent to commit an act of unlawful violence, the intention to cause annoyance or alarm is almost certainly not a “true threat” as the Supreme Court has defined the term, making the statute overbroad.

The SUNY Case

The allegations in the SUNY Purchase case illustrate this point. The flyer allegedly posted by the defendant, while undoubtedly offensive and certain to cause annoyance and alarm to members of the campus community, does not appear to convey a “true threat” in the constitutional sense of the phrase: The defendant’s actions do not express a specific threat of violence to any defined person or persons.

In any event, even if the statute proscribed only speech that constituted a “true threat,” the government cannot choose to prohibit only a subset of that class of proscribable speech based on a disfavored viewpoint. See R.A.V., 505 U.S. at 386.

None of this is to say that SUNY must permit the posting of swastikas at all locations on its campus: As the owner of the buildings, SUNY could limit the posting of signs to prescribed areas of the campus. Such a prohibition would have nothing to do with the government restricting the content of the message; that it may incidentally infringe on the freedom of speech does not make it unconstitutional. See, e.g., Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983) (“The state may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.”).

Additionally, SUNY may, to a certain degree, allow the posting of signs in specified areas but limit the content or subject matter of the signs, so long as it does not limit a specific viewpoint. See, e.g., Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829-30 (1995) (“[I]n determining whether the State is acting to preserve the limits of the forum it has created so that the exclusion of a class of speech is legitimate, we have observed a distinction between, on the one hand, content discrimination, which may be permissible if it preserves the purposes of that limited forum, and, on the other hand, viewpoint discrimination, which is presumed impermissible when directed against speech otherwise within the forum’s limitations.”).

Furthermore, to attempt to avoid any constitutional infirmity, the Legislature could amend this section of the Penal Law to mirror the constitutional Virginia statute. Perhaps as the burning of a cross is a particularly malicious form of intimidation, the posting of a swastika and other Nazi paraphernalia may be found to have a “long and pernicious history as a signal of impending violence.” Black, 538 U.S. at 363. First Amendment Expert Eugene Volokh has argued that a statute that criminalized the posting of swastikas done with the intent of intimidating any person or group of persons might, per Black, be constitutional. See Eugene Volokh, Unconstitutional ‘Hate Speech’ Prosecution in New York, Dec. 12, 2018. The argument would be that such a statute is viewpoint neutral and limited to “true threats” of violence. If New York enacted the hypothetical statute, the argument would focus on whether, in the context of our nation’s history, the swastika, like the burning of a cross, is “inextricably intertwined” with impending violence. See Black, 538 U.S. at 352-357.

However, if SUNY permits certain political clubs to post their flyers around campus or on designated parts of campus, it would seem it is constrained to allow flyers for all political groups, even groups or flyers that the overwhelming members of the university and society find offensive. Indeed, this is the essence of free speech. As the Supreme Court has stated, “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 US 397, 414 (1989).

If the SUNY case results in a conviction after trial for violating §240.31(3), New York appellate courts will undoubtedly grapple with these constitutional issues. 

Andrew Wenzel is the principal court attorney for the Hon. William M. Harrington, Acting Justice of the Supreme Court, Kings County, Criminal Term.