By Wendy Kaminer 

Reacting predictably to spate of noose hanging incidents in late 2007, New York governor David Patterson has signed legislation criminalizing display of a noose with intent to harass or threaten because of bias against the usual categories, including race, religion, sex, sexual orientation, disability.  The legislation amended existing law prohibiting cross burning or display of a swastika with similar intent.  All three forms of hate speech are punishable by up to four years in prison.  I have little to add to my earlier discussions about this issue, here and here, except to repeat that last fall the New York Civil Liberties Union promised to “study” the noose display amendment; anyone interested in the results of that study should call the NYCLU at 212.607.3300.

Every few weeks a story pops up about how someone – often a college student or an employee who has been fed propaganda to the effect that he or she is entitled to live an offense-free life – was “harassed” because someone else left nasty comments on their door dry-erase board, or some such thing. The most recent example comes from the University of North Dakota, where one student was just charged with misdemeanor disorderly conduct for smearing ice cream on the wall of the dorm elevator to write the words “Scott is a Jew.” Of course, the local DA’s office was right to charge the kid with a crime: smearing ice cream on an elevator wall is arguably a crime of defacement – although permanent things like spray paint would make a more air-tight case – and if a jury agrees, the smearer should be punished. Writing slogans on public dormitory spaces, other than your own, or on bulletin boards and other spaces reserved for personal, non-communal use is also defacement. In neither case does it, nor should it matter what the content or point-of-view is. According to the article, “North Dakota law carries no special designation for hate crimes,” but in other states and on college campuses all around the country, this is not the case. Students elsewhere often find themselves in trouble on the basis of what they said, rather than on the basis of the defacement itself.

Graffiti has the ability to offend whether it says “Scott is a Jew” or “Fuck the Police!” -- or even an artistic rendition of Jesus Christ on a building’s exterior wall. So instead of using massive administrative infrastructure (in the college setting) and wasting juries’ time (in a criminal justice setting) trying to determine whether something was subjectively offensive (thus constituting some loose definition of “harassment”), colleges should adopt content- and viewpoint-neutral rules concerning what is essentially graffiti when written anywhere other than public bulletin boards (or the equivalent). This simple fix would save schools and police departments money, and would prevent students and other citizens from being punished for their opinions.