A Stitch in Haste

While so much attention was (rightly) focused on the outrageous proposal in the District of Columbia to initiate a patently unconstitutional "papers please" vehicle checkpoint regime, another just-as-patently unconstitutional display (no pun intended) of police power occured here in New York City:

New York City police detectives and Secret Service agents briefly detained and questioned an artist on Wednesday morning as he installed an exhibition with the title, "The Assassination of Hillary Clinton / The Assassination of Barack Obama."

The artist, Yazmany Arboleda, tried to set up the exhibition in a vacant storefront at 264 West 40th Street in Midtown Manhattan, and had finished stenciling letters of the title on the plate glass windows at street level.
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"I'm renting that space; the space was allocated for an exhibition, and it's my right to put those words up," he said. "They said it could incite someone to do something crazy, like break the window. It's terrible, because they’re violating my rights. If someone breaks a window, they're committing a crime."

He added: "The exhibition is supposed to be about character assassination. It's philosophical and metaphorical."

The Secret Service seems to have possibly overreacted but in the end respected Mr. Arboleda's First Amendment rights. The same cannot be said for the NYPD:

Speaking to reporters around noon, Police Commissioner Raymond W. Kelly said Mr. Arboleda had been questioned because the police wanted to determine his motives. "Obviously, they could be interpreted as advocating harm to protectees," Mr. Kelly said.

Put aside the pesky facts that (1) "having motives" is not a crime, and (2) "detained" is just a slick way of saying "seized" — as in a Fourth Amendment "seizure." Kelly's final attempt to wiggle off the hook, "could be interpreted as advocating harm to protectees," is also worthless as a rationale for abridging First Amendment rights.

The test for censoring speech based on potential civic disruption is Brandenburg v. Ohio, 395 U.S. 444 (1969), which provides the famous "imminent lawlessness" test:

[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

That's a far cry from Kelly's "could be interpreted as advocating harm" — failing both the "imminent" and the "likely" prongs of the Brandenburg test. Not to mention that art is generally not considered "advocacy of the use of force or of law violation."

The exhibit display was covered up by the owner of the building Arboleda rented. That is not state action and does not implicate the First Amendment; it is merely a contract dispute. Point conceded. And there may well be little constitutional harm in law enforcement or the Secret Service seeking to question the artist at his convenience. But forcibly detaining an artist, even for "mere" questioning and then applying the wrong constitutional test to the answers generated by such "mere" questioning crosses both Fourth and First Amendment lines that yet again demonstrate that liberty requires eternal vigilance at least as much as does the War on Terror.

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I am furious at myself for not saving the link, but someone, somewhere, left what may be the best comment ever in reference to this story:

This isn't shouting "Fire!" in a crowded theater — this is yelling "Theater!" in a crowded fire.

Dang, I wish I had thought of that, for there is much truth in it.