Painting Graffiti on African Burial Ground National Monument Isn't Protected Speech or Religious Practice
· Reason
The case is U.S. v. Palacio, decided last week by Judge Vernon Broderick (S.D.N.Y.); for what appears to be a video put up by Palacio, see this Instagram reel. First, the facts, as alleged by the government:
On September 20, 2024, Defendant Roberto Palacio … was charged with destruction of government property, in violation of 18 U.S.C. § 1361. …
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The African Burial Ground National Monument … sits on a portion of what was the nation's earliest and largest African American cemetery, which was established in or around 1673. Because African Americans were prohibited from being buried in churchyards within New York City at the time, the cemetery was located outside of the then-boundaries of the city. Approximately 15,000 to 20,000 men, women, and children were buried in the cemetery. In the early 1990s, during the excavation of what would become the Ted Weiss Federal Building, 419 human remains were uncovered at the location of a portion of the cemetery. In or around 2003, these remains were reinterred on the preserved portion of the cemetery on Duane Street near Foley Square. The Monument features a granite prism that is surrounded by a circle of the diaspora, which contains 22 Adinkra symbols, each representing different African peoples and cultures. Next to these symbols, there are seven burial mounds, which contain the 419 bodies previously discovered at the cemetery.
Defendant, who is 38 years-old, has been an artist for most of his adult life and is inspired by artists like Jean-Michel Basquiat. The graffiti included words, phrases, and symbols such as "Palacio," "REINCARNATION," Olympic rings, and "The Second Art Showing: Coming TIFF TIFF," which indicated how the audience could further engage with his art show. Moreover, it also included a large crown painted in the center of the circle of the diaspora and pink paint on the Adinkra symbols. Later that same day, Palacio made a public Instagram post (the "Post") that showed the digital rendering of a pink light beam emanating from the Monument. The Post announced the opening of an "art show" running from August 12 "until they take it down" and urged people to "go check it out." The Post also described details of graffiti, including the large blue crown and the pink paint on the Adinkra symbols. Palacio added: "This was done, illegally. I Will be turning myself in, shortly."…
Palacio admitted that on August 13, 2024, he committed an "expression of art" by vandalizing the Monument. Additionally, Palacio admitted that while he had originally planned to turn himself in soon after he committed the vandalism, he later decided to wait until September 10, 2024, because there were several art exhibits happening on that day. The cost to restore the Monument totaled "thousands of dollars." …
The court concluded that the government had adequately alleged an "injury" to federal property:
Under 18 U.S.C. § 1361, it is unlawful to "willfully injure[ ] or commit[ ] any depredation against any property of the United States, or of any department or agency thereof." … I find that at this stage, the Government pleads enough facts to show that Palacio's graffiti on the Monument constitutes "injury" to the Monument. His graffiti caused the Monument to temporarily close to visitors and required over $1,000 to clean up, "reduc[ing] [its] value or usefulness" and "impair[ing] [ ] the use of property."
The court rejected Palacio's free speech claim:
The First Amendment "affords protection to symbolic or expressive conduct." The parties presumably agree that Palacio's conduct, which includes artistic expression, falls within the ambit of the First Amendment.
However, "when speech and nonspeech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms." … Here, § 1361 on its face and as applied to Palacio is indisputably content neutral. The statute simply prohibits willful injury or depredation against any property of the United States, "without reference to the message the speaker wishes to convey." Nor is there any evidence that the Government is specifically prosecuting Palacio because of the messages he graffitied on the property…. [T]he government has "a weighty, essentially esthetic interest in proscribing intrusive and unpleasant formats for expression." … [And t]he statute's prohibition against injury or depredation to the Monument is also "narrowly tailored to advance this interest, curtailing no more speech than is necessary to accomplish its purpose of protecting the property and advancing esthetic values."
Indeed, "[n]o one has a First Amendment right to deface government property." … Even if "the defacement at issue is temporary and can be cured … [t]he government can proscribe even temporary blight." …
And the court rejected his Religious Freedom Restoration Act claim:
Defendant argues that … his actions were "motivated by sincerely held spiritual beliefs concerning the process of self-coronation, which relies on ancestral connection uniquely found at the Monument." Thus, Palacio argues that the Government's prosecution of this conduct substantially burdens his exercise of religion and "exerts extraordinary pressure on an individual to refrain from engaging in conduct he believes to be spiritually significant."
RFRA provides that the "[g]overnment shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability," unless the government "demonstrates that [the] application of the burden to the person" is "the least restrictive means of furthering" a "compelling governmental interest." "To establish a prima facie RFRA violation, the plaintiffs must demonstrate that they sought to engage in the exercise of religion and that [the Government] substantially burdened that exercise." The "exercise of religion" is defined broadly as "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." … "… [T]o show that an individual's beliefs are part of his exercise of religion, the individual need only demonstrate that the beliefs professed are sincerely held and in the individual's own scheme of things, religious." …
Here, Palacio fails to establish a prima facie case under RFRA. Even assuming that his sincerely held religious beliefs require him to engage in the process of "self-coronation" at the Monument, he does not properly establish that the Government's prosecution prohibiting him from graffitiing the monument "substantially burden[s]" that belief. RFRA's "substantial burden" test "requires an objective inquiry into the extent of the governmental pressure on the plaintiff's exercise of religion." "A substantial burden exists where the state puts substantial pressure on an adherent to modify his behavior and to violate his beliefs." In other words, "substantial burden on religious exercise exists when an individual is required to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion on the other hand."
Palacio neither explains why "self-coronation" and this particular form of religious expression can only be accomplished through illegal defacement of property rather than through other forms of art and expression, nor does he contend that the Monument is the only site where he can practice these spiritual expressions. Indeed, Defendant simply makes the conclusory statement that a criminal prosecution is a "substantial burden on his exercise of religion" without anything more. This mere parroting of the language of the statute does not warrant dismissal.
Moreover, "[t]he availability of alternative means of fulfilling religious obligations … cautions against the finding of a substantial burden." See also Henderson v. Kennedy (D.C. Cir. 2001) (ban on T-shirt sales on the National Mall does not substantially burden religious groups who sought to sell religiously themed T-shirts because they could sell T-shirts elsewhere). Although Palacio contends that self-coronation relies on an "ancestral connection uniquely found at the Monument," he also acknowledges that "self-coronation" can occur at places "where he [feels] a profound connection to his ancestors and their history." This could presumably occur at many other locations other than the Monument. Palacio also provides no information concerning why the only way to express "self-coronation" was through graffiti, rather than a lawful method of expression, at the Monument….
Getzel Berger represents the federal government.
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