Jasskirat Saini, a student at the Garden City Campus of Nassau Community College on Long Island, has been arrested for drawing offensive graffiti on NCC’s campus beginning with three swastikas in a bathroom on 15 October. He is supposed to have drawn 110 politically incorrect figures on 12 occasions. On 20 December Nassau County Police observed Saini drawing two swastikas on the exterior wall of one building and KKK on the floor of another.
Initial reporting on the graffiti alleged a connection to supporters of Donald Trump.
While Breitbart calls it a “hate hoax” — which to some degree it is, insofar as Saini is surely not with the KKK — Saini says that he did the graffiti because he felt that he was being harassed by Jews.
A police spokesman says: “Bigotry, racism, will not be tolerated here in Nassau County.”
Saini is being charged with “aggravated harassment” for ten instances of anti-Jewish graffiti, potentially carrying a penalty of four years’ imprisonment.
Four years’ imprisonment for offensive graffiti under the guise of “aggravated harassment”?
I see a First Amendment issue here. There is no claim that valuable property was destroyed. A penalty proportionate to the expense of removing the graffiti would be appropriate, but that cannot be much, since Saini only used a black magic marker, easily removed with organic solvents. When four years’ imprisonment is contemplated as a penalty for graffiti, it is clear that the content of the graffiti is what is being punished — and that is constitutionally protected.
“Bigotry, racism” as such is not illegal anywhere in the United States!
If Jasskirat Saini wanted to display a swastika, he should have posted leaflets, or distributed printed matter in whatever way is consistent with the normal practices at that institution. Jews, being as they are, might still have agitated for him to be charged with “aggravated harassment,” but without the fundamentally illegal act of drawing graffiti (usually charged as “criminal mischief”) the question of free speech would be conspicuous, and prosecution therefore less likely, or less likely to succeed, and meanwhile Jews would appear as enemies of a fundamental American freedom.