Criminal Justice

Free Speech and Private Property Rights Collide in Florida's Nazi Bat-Signal Incidents

Counter-protesters line the streets in Washington D.C. on August 12, 2018, in response to a planned Unite the Right Rally.
Counter-protesters line the streets in Washington D.C. on August 12, 2018, in response to a planned Unite the Right Rally. Photo by Mobilus in Mobili
Across Florida, cities are mulling over how to respond to a spate of incidents in which anti-Semites used light projectors to flash neo-Nazi symbols and messages onto private buildings.

When these types of hate-mongering messages pop up, dismayed callers tend to flood police phone lines, complaining about the vitriol plastered in public. But Florida police departments are at a loss to take action, saying state law and local ordinances don't explicitly ban the activity.

The incidents, however bigoted, are blurring the line between free speech and private property rights, between a nuisance and First Amendment expression.

In the wake of anti-Semitic stunts in their cities, legislators in Palm Beach County and Jacksonville have proposed measures that would clamp down on the use of projectors to display messages on private property without the owners' permission.

Jacksonville city councilman Terrance Freeman has proposed general legislation that would make unauthorized light projections on buildings equivalent to "blight and graffiti," with a maximum penalty of 60 days in prison, along with a fine of at least $2,000. Palm Beach County Mayor Gregg Weiss said a similar measure is on the table in his neck of the woods.

Florida International University professor Howard Wasserman tells New Times that so long as the new laws remain neutral in how they regulate content, they have a solid chance of surviving court challenges. If cities try to regulate the projections with an eye towards prohibiting particular content, even anti-Semitism, the laws would trigger a tougher standard called strict scrutiny and risk being declared unconstitutional, Wasserman says.

"Cities can regulate billboards, for instance, with a public aesthetics rationale," says Wasserman, a civil rights and constitutional law author. "It's analogous to people putting up signs on property in public spaces other than their own property. Where the cities would run into problems is if they tried to prohibit specific messages or signs from being projected."

Jacksonville and West Palm Beach both dealt with anti-Semitic projection stunts on January 14, when large swastikas were seen on prominent buildings in the cities. In West Palm Beach, the message, "Jews did 9/11. The FBI helped," appeared on the side of the AT&T building downtown.

Last October, the line "Kanye was right about the Jews" was displayed using a light projector at TIAA Bank Field in Jacksonville after the rapper, now known as Ye, went on a Jew-bashing tirade. (The musician's press tour culminated with his expressing admiration for Adolf Hitler in an interview with InfoWars' Alex Jones.)

The round of bigoted light projections has coincided with a campaign of anti-Semitic flyers in plastic bags being dropped around town in South Florida. This past weekend, the Palm Beach County Sheriff's Office reported the bigoted flyers appeared in its parking lot. The prior week, hate-mongering material appeared in a neighborhood in Boca Raton.

New Times spoke with legal experts last year who said that, beyond the scope of littering laws, the act of dropping offensive flyers is not illegal on its face, as the people responsible are exercising their First Amendment rights.

Light projection brings up some unique legal questions, however. How long, for instance, can someone flash a swastika on a private building before it becomes an act of harassment against the building owner? Is it akin to a car's headlights momentarily flashing across a property — or an overtaking of the property owner's own rights?

In a 2020 review, Harvard law professor Molly Brady points out that unauthorized light projections on private property "may threaten the owner’s reputation or falsely attribute to the owner either a willingness to be used as a billboard or the particular message itself." The projection amounts to a nuisance or property intrusion, which would ordinarily give the owner cause to sue the offender, Brady argues.

"It is also an appropriation in the property sense... an exercise of control over property from outside the boundaries, a taking of the facade for the communicator’s ends," Brady writes.

Light projections have become commonplace in political activism and marketing campaigns in recent years.

In 2013, Ye — still known as Kanye West at the time — promoted his album Yeezus through a coordinated light projection campaign on dozens of buildings across the globe. The group known as Survivors of the Abortion Holocaust has displayed messages and graphic images on buildings to protest Planned Parenthood. And on the other side of the political spectrum, an activist drew headlines in 2017 when he projected "Pay Trump Bribes Here" above the entrance to Donald Trump's Washington D.C. hotel

Still, the legal boundaries and case law on so-called guerilla projections are not well-defined.

In one Nevada case, a group of protesting union workers projected a message onto a commercial property, broadcasting alleged health code violations against a restaurant on the premises. The property owner responded by filing a lawsuit that claimed the projection amounted to trespassing.

The Court of Appeals for Nevada noted that some jurisdictions acknowledge trespassing even when there is not a physical intrusion, with some courts holding that "trespass may... occur when intangible matter, such as particles emanating from a manufacturing plant" come onto a property. But Chief Judge Michael Gibbons found that because the Nevada property was not damaged by the light projection, the actions of the union workers did not meet that standard of "intangible" trespass.

As Brady notes, targeted light projections "do not seem to give rise neatly to liability" under traditional legal frameworks.

In New York City, members of the group Illuminator were arrested in 2014 after they projected "Koch=Climate Chaos" onto the Metropolitan Museum of Art to protest the placement of business magnate David Koch's name on a Met plaza. They were charged under a New York state law that prohibits people from placing signs on private property before obtaining owner authorization.

The criminal case was later dismissed, according to an NPR report. The protesters sued over their detainment, and the presiding New York court reportedly found that the statute covered physical signs, not light projections, prompting the city to settle the lawsuit.

West Palm Beach police were faced with a comparable conundrum on January 14, when officers found the men they believed to be responsible for using a projector to flash the giant swastika on the AT&T building. After officers arrived on scene, the men — who had been projecting the hate symbol from a public space — simply declined to cooperate and departed, leaving officers with little recourse, the department says.

"It's not trespassing. They were standing in a public parking garage," says West Palm Beach police spokesperson Mike Jachles, noting that the police are still exploring options with the state attorney on how to respond.

Jachles says that while the city's police department condemns anti-Semitism, the officers had to respect free speech rights "whether they liked the message or not."

"We are not the censorship police. We can only enforce the laws that are on the books," Jachles says.
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Izzy Kapnick is the news editor at Miami New Times. He has worked as a legal news reporter in South Florida since 2008, covering environmental law, white-collar crime, and the healthcare industry.
Contact: Izzy Kapnick

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