Yesterday a New York Times blog reported on an interesting free speech controversy taking place just across the street from the newspaper:
This morning, a Boston-born performance artist, Yazmany Arboleda, tried to set up a provocative art exhibition in a vacant storefront on West 40th Street in Midtown Manhattan with the title, “The Assassination of Hillary Clinton/The Assassination of Barack Obama,” in neatly stenciled letters on the plate glass windows at street level.
By 9:30 a.m., New York City police detectives and Secret Service agents had shut down the exhibition, and building workers had quickly covered over the inflammatory title with large sheets of brown paper and blue masking tape. The gallery is across the street from the southern entrance to The New York Times building.
Thing is, the guy claims he was just using a metaphor:
Later, Mr. Arboleda, who is 27, said in an interview: “It’s art. It’s not supposed to be harmful. It’s about character assassination — about how Obama and Hillary have been portrayed by the media.” He added, “It’s about the media.”
. . . .
Mr. Arboleda has even set up elaborate Web sites, one for Mrs. Clinton and one for Mr. Obama.
. . . .
He added, “The exhibition is supposed to be about character assassination. It’s philosophical and metaphorical.”
I was ready to write a post decrying the police conduct as overbearing. But in truth, I’m not so sure what happened. The story seems to lapse into some sloppy language accusing the police of things that the facts don’t necessarily support.
For example, that claim above that “New York City police detectives and Secret Service agents had shut down the exhibition.” Yet later in the post we read:
Special Agent Eric P. Zahren, a spokesman for the Secret Service in Washington, emphasized in a telephone interview that the agency did not seek to shut down the show.
“We did not shut down that exhibit or request that anybody else shut it down,” Agent Zahren said.
So how do we know that the police and Secret Service shut it down? The only other passage that is relevant to that claim says: “After the police arrived, building workers quickly covered up the installation.” Did they do it on their own, on orders from building authorities, or on orders from the police? We are not told.
So maybe the police shut it down, and maybe they didn’t.
I am similarly suspicious of the claim that “Arboleda had already been released from custody a short while earlier.”
What facts suggest that he was “in custody”? We are told that an interview with the newspaper “was abruptly ended as Mr. Arboleda was led off to the Midtown South police precinct station for what he called an interrogation.” If someone is being interrogated, that does not automatically mean they are in custody, the way most readers conceive of the term. (Lawyers: put aside what you learned about Miranda in law school. That doesn’t really have any relevance to what the average reader thinks.)
I think most readers would think “released from custody” means he had been arrested, or at the very least, detained by a show of force, threat, or authority. Maybe that happened — and maybe he just agreed to talk to police. The Police Chief doesn’t think he was necessarily arrested:
Police Commissioner Raymond W. Kelly, speaking to reporters at 1 Police Plaza around noon, said, “I am not certain he has been arrested . . .”
It sounds more like an interrogation:
“The Secret Service had to do a whole questionnaire with me,” he said. “It was about an hour of questioning. They asked if I owned guns, if I was a violent person, if I had ever been institutionalized.”
I’m not sure that he was arrested — or in “custody,” the way most people use the term. But I don’t know all the facts. Continuing:
Mr. Arboleda answered no. Nonetheless, he said the Secret Service asked him if he would voluntarily take down the exhibition title from the window.
I’m not sure that counts as “shutting down” the exhibition.
But the guy does have a point when he says:
“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.”
Indeed. And it doesn’t appear that the police have much of a concept of the First Amendment:
Asked whether the artwork was being seen as dangerous, Mr. Kelly said: “Obviously, it sounds totally inappropriate. We need more information as to what the purpose of it was. As I say, apparently he made some statements that he was referring to their reputations … don’t know, we will have to get more information. But he is being questioned now by our detectives and the Secret Service.”
Mr. Kelly was also asked why the artist would be questioned at all. “Why would we question him?” he responded. “Well, we want to determine what his motives are. Obviously they could be interpreted as advocating harm to protectees; both of the senators, of course, are now being provided Secret Service protection, that’s why the Secret Service was interested; both of them are federal employees, so, ah, of course it is a concern to federal authorities as it is to ourselves. Our lawyers are researching it and will determine if there are any violations of law; right now he is being questioned.”
Well, you can’t shut down expressions of speech because you think they’re “inappropriate.” if — I say if — the exhibition was shut down by authorities, they might want to consider whether there were any violations of law on their own part.
I’m sure they’ll get right on that.
UPDATE: Eugene Volokh says that, based on the NYT blog account (which Volokh agrees could be wrong), it sounds like the authorities might have overstepped their bounds.