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June
28, 2003
Fear Factor
Art,
Terror and the First Amendment
By
JULIE HILDEN
Can art that mimics, or comments on, terrorism
also be a kind of terrorism--or, at least, a kind of criminal
conduct? The question was raised by a controversial piece of
public art created by a young New York City artist, Clinton Boisvert.
Last December, with New Yorkers still
very much on edge after the first anniversary of 9/11, Boisvert
placed about three dozen Federal Express boxes in the heavily-trafficked
Union Square subway station, during morning rush hour. Each was
spray-painted black; each bore the single word "Fear."
At first, no one took notice. But ultimately,
the police were alerted; the bomb squad arrived; and the subway
trains were stopped, leaving commuters worried, inconvenienced,
and annoyed. A bomb-detecting robot was sent into the station--in
vain, since the boxes were empty.
Apparently, the police feared that the
boxes were part of an act of terrorism, and might contain weapons.
That suspicion was hardly unreasonable, given that innocuous
means of delivery--such as a shoe sole, in the case of the "Shoe
 Bomber," or an envelope, in the
case of the anthrax letters--had previously proved very dangerous
indeed.
Boisvert claims that he hadn't anticipated
that such a reaction might occur, until his teacher at the School
of Visual Arts raised the possibility during class, afterward.
Nevertheless, Boisvert was criminally charged for putting the
boxes in the station.
Should he have been? Did New York law
really prohibit what Boisvert did? Or were the laws stretched
to allow him to be charged?
And even if the charges were proper,
should the First Amendment have provided a complete defense for
Boisvert's actions? After all, his art event took place in a
public area, and it involved both actual speech (the word "Fear")
and symbolic speech, in the form of the black boxes.
The First Charge Against
Boisvert: Why Reckless Endangerment Is A Stretch
Boisvert was charged with reckless endangerment
and disorderly conduct. But, thanks to the intervention of American
Civil Liberties Union attorney William Stampur, the charge was
reduced to disorderly conduct alone. In the end, Boisvert was
ticketed, served five days of community service, and wrote an
apology letter to the police.
Putting the First Amendment issue aside,
did his conduct fit these charges?
First, let's consider reckless endangerment.
It is defined under New York law as recklessly "engaging
in conduct which creates a substantial risk of serious physical
injury to another person."
Charging Boisvert with this offense seems
to me to be a stretch. Possibly, someone might have been seriously
injured if panic had ensued after word of the "Fear"
boxes had spread in the subway station, especially if there had
been a stampede towards the exit. But in fact, that didn't happen,
and it seems  unlikely it would have. New Yorkers have
been surprisingly polite, and helpful to each other, in the face
of terror threats--as the admirable conduct of those caught in
or near the World Trade Center tragedy attested.
Moreover, the real harm of what Boisvert
did seems to be quite different. He probably inspired fear in
some commuters who saw the boxes and panicked. And he certainly
wasted police department resources and time; made commuters late;
and caused the loss of time and money.
More generally, Boisvert disrupted the
lives of everyone involved, forcing them to defer their own concerns
to deal, for the moment, with his "Fear" boxes. And
he inflicted this harm upon a captive audience; commuters needed
to be on time for work, and might have hesitated to simple walk
away, enduring their fear instead.
In sum, Boisvert's art did harm. But
it did not really accomplish the kind of harm the "reckless
endangerment" statute contemplates.
The Second Charge
Against Boisvert: Disorderly Conduct Doesn't Fit Either
What about disorderly conduct? Under
New York law, disorderly conduct requires both a certain kind
of state of mind, and a certain type of conduct.
Boisvert's state of mind, he says, was
innocent. He has suggested that he didn't anticipate that anyone
would fear that his black boxes contained bombs or other terrorist
devices. That seems hard to believe, but it becomes a little
easier when one learns he was a freshman doing a class project
at the time. Freshmen are not known, after all, for their wise
and prudent judgment.
The problem for Boisvert is that even
if he can prove he never anticipated the fear his "Fear"
boxes would create, he's not in the clear. The disorderly conduct
statute reaches those who intend "to cause public inconvenience,
annoyance or alarm"; Boisvert says he isn't among them.
But it also reaches those who "recklessly creat[e] a risk"
of public inconvenience, annoyance or alarm. And it can be argued
that even if Boisvert never intended his boxes would alarm people,
he at least recklessly created the risk that, indeed, they would.
Thus, Boisvert arguably satisfies the
"state of mind" component of the disorderly conduct
statute. But what about the "conduct" component? Boisvert's
conduct was to create the boxes and place them in the subway
station. And that conduct is far afield from the kind of violent,
antisocial conduct the disorderly conduct statute is trying to
reach.
Much of the disorderly conduct statute
sounds like it is tailored to a bar fight, not an art project.
The statute is triggered, for instance, by "fighting";
"violent, tumultuous or threatening behavior"; "unreasonable
noise"; "abusive or obscene language"; or "an
obscene gesture." Or all of the above--your typical barroom
brawl. But Boisvert is an artist, not a fighter.
The rest of the statute seems to target
certain disruptive kinds of protest. The statute reaches those
who "disturb[] any lawful assembly or meeting of persons";
"obstruct[] vehicular or pedestrian traffic"; or "congregat[e]
with other persons in a public place and refus[e] to comply with
a lawful order of the police to disperse." Again, these
activities are far afield from Boisvert's; he came and went peacefully,
leaving his boxes behind.
Finally, the catchall provision in the
disorderly conduct statute is more general. It reaches instances
in which the culprit "creat[es] a hazardous or physically
offensive condition by any act which serves no legitimate purpose."
Again, this just doesn't sound like Boisvert. He scattered boxes
on the platform, rather than shattering beer bottles there.
As I noted above, the boxes seem to have
created a psychological, not a physical hazard. And it seems
unfair to say that they served "no legitimate purpose."
After all, shouldn't artistic purposes count as "legitimate"
ones?
In sum, neither of the New York criminal
charges brought against Boisvert--for "reckless endangerment"
or "disorderly conduct"--was truly appropriate.
Moreover, even if Boisvert had been prosecuted
under a hoax statute, rather than under these statutes, he might
also have avoided conviction. Although his art had the same consequences
as a hoax, he says that he did not intend it as one, and a hoax
classically is though of as an intentional deception.
The Potential Chilling
Effect of Criminalizing Art
All this is not to say, however, that
Boisvert's lawyer made a mistake in not moving to dismiss the
charges on the ground that they did not fit the criminal law,
or in not pressing the First Amendment issue further.
To the contrary, Boisvert's attorney
did his job well. The sentence ultimately imposed on Boisvert
was very light, especially given the policing costs, and public
anger, his art project incurred. Virtually any attorney worth
his salt would have urged his client to accept it.
However, the result of Boisvert's sensible
decision to accept his light punishment is that these laws still
hang over the heads of New York artists--threatening them, and
perhaps even Boisvert himself. In First Amendment law, that is
known as a "chilling effect."
Presumably, a second offense of the same
type, on Boisvert's part, would result in a harsher penalty.
Boisvert might feel compelled to accept that penalty, rather
than facing a potentially worse sentence after trial. That creates
a powerful incentive for him not to create "Fear Boxes Two"
next December.
Indeed, interestingly--and perhaps significantly--Boisvert's
latest work, as reported by The New York Press, is more a commentary
on terrorism, than a facsimile of it. Boisvert's second work
included a metal male figure with a penis covered with photos
of 9/11 victims. He placed it in Union Square (but not the subway
station), apparently without permission.
In response, the Park Service carted
the sculpture away in a dumpster. Those who saw the sculpture
might well have been offended by the use of 9/11 victims' photos.
But it seems unlikely that anyone was frightened by the sculpture
or inconvenienced by it. At worst, the sculpture was in bad taste,
and bad taste is not a crime.
Fear Versus Offense
The distinction between Boisvert's first
work of art, the "Fear" boxes, and his second work
of art, incorporating the 9/11 photos, tracks an important distinction
in First Amendment law as well.
The Supreme Court has made crystal clear
that speech cannot be censored because it is offensive. But speech
that causes fear is very much another matter. That's because
speech that inspires fear includes a threat of physical--not
just psychological--harm, and the First Amendment protects only
"speech," not conduct.
When speech inspires fear, the fear itself
is psychological, but its object is physical harm. Thus, the
speech flirts with conduct, and takes its place on the outskirts
of the zone of First Amendment protection.
In contrast, being offended is purely
psychological--the person who takes offense feels disgust, not
physical fear--and such reactions are the price we all pay to
live in a free society, and to be exposed to different ideas.
In the end, everyone will be offended
by something. Personally, I am offended by Boisvert's sculpture
incorporating the penis covered with 9/11 photos; those are the
same photos I saw on "Missing" posters just after the
attacks, and I'm not ready now--or ever--to see them on a metal
penis. But Boisvert might be offended by this column. So we can
declare a First Amendment truce; everyone's protected, and no
one is harmed.
But Boisvert's "Fear" boxes
are a bit different. The boxes had the effect of driving commuters,
physically, out of the subway station; once the police came--as
they predictably did--commuters had no choice but to leave. The
boxes also may have put people in physical fear, triggering worry
about a repeat of 9/11. After all, city subways have repeatedly
been named as likely Al Qaeda targets, and unlike airports, there
is no security check there; anyone can enter, carrying anything
they like.
For these reason, the "Fear"--and
fear-creating--boxes raise a difficult First Amendment issue.
Obviously, threats can be punished criminally.
So can cross-burning with a threatening intent, according to
a recent Supreme Court decision. And so can stalking, even if
it occurs solely on public sidewalks and streets.
But what about "threatening"
art like Boisvert's "Fear" boxes--art that, indeed,
can be mistaken for terrorism? I believe that the "Fear"
boxes, at a minimum, have a far better claim to First Amendment
protection than direct threats, stalking, or burning crosses
do, for several reasons.
First, the boxes' interpretation is highly
subjective, and open to debate. It's pretty clear that when someone
says "I'm going to kill you" in certain circumstances,
they mean it. And the message of a burning cross on the lawn
across from an African-American family's house sends an unmistakable
message. But what do the "Fear" boxes say, exactly?
Do they say that fear can--or cannot--be
confined? That it's useless to keep fear in a psychological "box"?
Do they parody New Yorkers' lingering fear of terrorism, or encourage
it?
Different individuals are bound to have
radically different interpretations of what the boxes mean--and,
in part for this reason, radically different emotional reactions
to them. Indeed, Boisvert's "Fear" boxes might have
actually diminished some New Yorkers' fears of terrorism.
Many New Yorkers who saw the boxes must
have learned later that they actually did not contain anything
dangerous at all--indeed, they were only a freshman art project.
For them, the "Fear" boxes
may have acted as a welcome reminder that the climate of fear
in which many New Yorkers still live, may not always reflect
reality. Even among the threats, daily life--and art, fortunately
very much a part of New York's daily life--goes on. In a city
always under the shadow of the Orange threat level, that's important
to remember.
Finally, it's worth considering that
art may be valuable precisely in that it is provocative--and
one way to be provocative is to inspire anxiety, or even fear.
After all, art that is not--in at least some respect--disturbing
may not be worthy of the name; it may merely be entertainment.
For all these reasons, though the case
is a close one, my view is that the "Fear" boxes ought
to fall under the First Amendment, not the criminal law.
Julie Hilden
practiced First Amendment law at the D.C. law firm of Williams
& Connolly from 1996-99. Currently a freelance writer, she
published a memoir, The
Bad Daughter, in 1998. Her forthcoming novel Three
will be published in the U.S. in August 2003 by Plume Books,
in the U.K. by Bantam, and in French translation by Actes Sud.
This column originally appeared on Findlaw's
Writ.
She can be reached at: julhil@aol.com.
Julie's new
website is a lot of fun. Have a look.
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