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Sidewalk Chalk Protest Could Get Man 10 Years In Prison

A California man faces up to ten years in jail for writing messages in sidewalk chalk on a public sidewalk:

SAN DIEGO (CBS 8) – A North Park man is looking at more than a decade behind bars for using washable chalk to protest the banking industry.

Jeff Olson is being charged with 13 counts of vandalism for writing anti-bank slogans on sidewalks outside three Bank of America branches.

A surveillance camera caught Olson in the act, writing on the sidewalk in front of a Bank of America in North Park. But here’s the thing — Olson admits it.

“I wrote ‘No thanks big banks,’ I wrote ‘Shame on Bank of America,’” he said.

For Olson it was about free speech, letting customers know that he blamed big banks for much of our economy’s problems. Not for a minute did he consider it vandalism.

“Always on city sidewalks, washable chalk, never crude messages, never vulgar, clearly topical,” he said.

But the city attorney’s office — after receiving multiple emails from a high ranking bank security manager — decided to charge Olson with 13 counts of misdemeanor vandalism.

“It seems a little extreme,” bank customer Wendy Greene said.

Greene remembers seeing Olson’s writing outside her B of A branch. She doesn’t consider it vandalism.

“No, vandalism is not the work that came to mind. Seemed like freedom of speech. A little extreme, but it was just chalk,” Greene said.

(…)

Olson’s attorney argued in motions Tuesday morning that this is free speech written in easily cleanable chalk, but Judge Howard Shore disagreed, saying this case has nothing to do with free speech.

“In light of the fact that it’s clear in the case law, vandalism is not a legitimate exercise of free speech rights. It really is irrelevant what the message is, or content is,” Judge Shore said.

That’s not to say Olson is guilty, but the jury cannot consider his right to free speech when deciding his fate.

Aside from the question of how easily removable sidewalk chalk can be considered “vandalism” akin to say spray painted graffiti, I’ve got to say that Judge Shore’s determination that the jury can’t even consider Olson’s First Amendment rights seems to me to be clearly reversible error. How is there not a First Amendment issue here?

One can only hope that sanity prevails here.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. wr says:

    Clearly this judge has been listening carefully to the messages sent by the “conservative” majority on the Supreme Court — free speech belongs to the rich and the powerful. Everyone else has the right to speak until it inconveniences the rich and powerful — after that moment, they are to be squashed like bugs.

    Like or Dislike: Thumb up 13 Thumb down 1

  2. Argon says:

    Two words: Jury nullification.

    Like or Dislike: Thumb up 6 Thumb down 0

  3. @wr:

    The Roberts Court has been the most aggressive in protecting First Amendment rights for everyone of any Court sine the Warren Era.

    Like or Dislike: Thumb up 1 Thumb down 4

  4. MarkedMan says:

    I would be interested in hearing about non-conservative, non-wealthy cases they have decided favorably. My impression is that this court sees themselves as champions of the wealthy of the Republican Party and its base. If there are cases that prove me wrong, I would like to know about them.

    Like or Dislike: Thumb up 5 Thumb down 0

  5. MarkedMan says:

    That was meant to read ” …the wealthy AND the Republican…”

    Like or Dislike: Thumb up 0 Thumb down 0

  6. @MarkedMan:

    Just off the top of my head, I will list three cases:

    1.a challenge to a state law prosecution against videos that supposedly depicted violence against animals;

    2. the decision that decided that Westboro Baptist Church cannot be barred from protesting on public property.

    3. Last term’s decision striking down a conviction under the “Stolen Valor Act”

    All three of these decisions were either unanimous, 8-1, or 7-2 decisions.

    Like or Dislike: Thumb up 2 Thumb down 0

  7. @MarkedMan:

    Now, I will simply ask you to cite a single case since Roberts became CJ that restricted First Amendment rights for “ordinary citizens”

    Like or Dislike: Thumb up 3 Thumb down 0

  8. Gustopher says:

    Judge Shore’s ruling against mentioning the first amendment is pretty appalling. Is there any relation to Pauly Shore?

    Like or Dislike: Thumb up 0 Thumb down 0

  9. Rick Almeida says:

    @Doug Mataconis:

    Doug,

    I think your comment about the Roberts Court and free speech would make a great full-length post. It brought to my recollection this Adam Liptak piece from 2012.

    Like or Dislike: Thumb up 2 Thumb down 0

  10. walt moffett says:

    Somethings wrong when consecutive sentences for misdemeanors approach the sentence given for say armed robbery or rape.

    Like or Dislike: Thumb up 3 Thumb down 0

  11. @Doug Mataconis: There was also the case restricting the sale of video games (Brown v. Entertainment Merchants Association), and frankly, while Alito and Thomas have been awful on freedom of speech cases, so has Breyer.

    Like or Dislike: Thumb up 2 Thumb down 0

  12. MarkedMan says:

    @Doug Mataconis: I defer to your knowledge of the Supreme Court’s rulings, as it is something you follow closely, and it’s why I said “If there are cases that prove me wrong, I would like to know about them”. I wasn’t trying to snark, I really do want to know if I am suffering from blinders. My impression of this court is pretty negative and so I obviously could be guilty of selection bias.

    As for the cases you cite:
    1) is a ruling in favor of cruelty to animals on free speech grounds, but it also is pro-business. As you may know, there are powerful food lobbies that are constantly attempting to keep animal cruelty from becoming actionable. Now – if they take on a case that challenges the criminalization of, say, speaking negatively of beef in Texas, or making public videotapes of animal cruelty in meat production plants, then it would be clear cut. I’m not saying it is not a pro free speech ruling, just that it also happens to promote the interests of those parties who I believe (perhaps wrongly) the Supremes are truly interested in helping.
    2) Upholds the free speech rights of fundamentalist Christian groups. Again, I’m not denying this is a pro free-speech ruling but it can also be seen as consistent in promoting the agenda of the politicized Christianists that make up a very vocal part of the Republican base. No-one, even the Christinists, likes the Westboro loonies, but a ruling against them might have had wider repercussions against some of (what I consider to be) the Supremes’ Republican and Christianist allies.
    3) Stolen valor act is a pretty clear case. The Republican base sees ‘protecting’ the reputation military and the country as very important and is very willing to criminalize speech they see as insulting the same. See “flag burning amendment” for example. The ruling does indeed hold up free speech in direct contradiction of the Republican and Christianist wishes. So its a very good example.

    Like or Dislike: Thumb up 7 Thumb down 0

  13. OzarkHillbilly says:

    That’s not to say Olson is guilty, but the jury cannot consider his right to free speech when deciding his fate.

    Wanna bet?

    Like or Dislike: Thumb up 3 Thumb down 0

  14. Franklin says:

    He should have spelled it out with some kids’ alphabet blocks. Then he would only be charged for littering, not vandalism.

    /I’m kidding, this is stupid

    Like or Dislike: Thumb up 3 Thumb down 0

  15. Tony W says:

    This happened fairly near my home, and I can tell you that it is vandalism in the sense that it rarely rains here, particularly this time of year, so sidewalk chalk lasts a long time….ah, sunny San Diego!

    Like or Dislike: Thumb up 0 Thumb down 0

  16. Anderson says:

    Tony, if it rains so seldom, the sidewalks must get grimy … unless washed periodically?

    Like or Dislike: Thumb up 0 Thumb down 0

  17. rudderpedals says:

    The good news is someone went to jail for Bank of America vandalism. The bad news is it wasn’t any of the banksters.

    Like or Dislike: Thumb up 2 Thumb down 0

  18. wr says:

    @Doug Mataconis: “The Roberts Court has been the most aggressive in protecting First Amendment rights for everyone of any Court sine the Warren Era. ”

    The Roberts court has decided that it’s unconstitutional for a state to provide matching funds for a political candidate vastly outspent by billionaires because that unfairly diminishes the value of the billionaire’s money/speech.

    They protect the First Amendment rights of the super-rich. Oh, and the mega-rich. Those are the only rights that matter to Roberts.

    Like or Dislike: Thumb up 4 Thumb down 0

  19. wr says:

    @wr: Oh, and it’s fairly disingenuous to “prove” that the Roberts court has been good on First Amendment issues by pulling up a couple of unanimous or 7-2 rulings. It’s the 5-4 rulings where the majority has its say.

    And odd how you completely neglected the most important “free speech” case this court has considered… Citizens United, which explicity declared that the only speech that deserves protection is money.

    Like or Dislike: Thumb up 3 Thumb down 1