Clik here to view.
Photo by Alex Gibney
In January, the New Yorker ran a story about an Army-veteran-turned-radical-art-school-student who has posted about a dozen signs around New York City “designed to look as if they’d been issued by the N.Y.P.D.” The signs say things like:
- ATTENTION: Drone Activity in Progress
- ATTENTION: Local Statutes Enforced by Drone
- ATTENTION: Authorized Drone Strike Zone 8AM – 8PM INCLUDING SUNDAY
Clik here to view.
Photo by minor urbanism
According to the New Yorker, the purpose of the signs is “to stimulate discussion about the domestic use of drones.” The signs’ anonymous creator told the magazine that he is “particularly dismayed” by the military’s use of deadly drones in Afghanistan and Pakistan and by reports that such drones are being tested in the United States.
I was intrigued, but not so much by drones as by the signs themselves—and, more specifically, their criminal and First Amendment implications.
Setting aside the question of whether such signs might be vandalism (regardless of their message), they might also subject their creator to prosecution under New York’s criminal impersonation statute, which prohibits a person from “falsely express[ing] by his words or actions that he is a public servant or is acting with approval or authority of a public agency or department and . . . so acts with intent to . . . cause another to act in reliance upon that pretense.” N.Y. Penal Law § 190.25(3). My initial view is that the signs’ creator did not intend to cause anyone to act in reliance on the pretense, because he did not intend anyone to believe the N.Y.P.D. actually made the signs. (I could be wrong about this, though; maybe he thought fooling members of the public would help spark discussion.)
Regardless of the creator’s intent, I also think that reasonable people would not believe the signs were actually produced by the N.Y.P.D.—at least, not after a second or two of reflection. Although the signs are admittedly relatively official-looking and are mounted on utility poles or sign posts, what reasonable person would believe today that no-parking rules are enforced by drones, or that drones are authorized to strike a Manhattan intersection during daylight hours on a Sunday? Because reasonable people would understand that the signs were a parody, prohibiting them on the basis of their content might even be unconstitutional. (In his amicus brief filed in United States v. Alvarez, Eugene Volokh interprets the Stolen Valor Act not to apply to “statements that are likely to be understood as fiction, humor, parody, or hyperbole,” citing Hustler and Greenbelt.) That said, I didn’t find much in a cursory search for parody cases relating to impersonation of government agents, and the harm from mistakenly believing a parody is in fact government speech could be much greater than when merely a private party’s trademark or right of publicity is at issue.
Or am I wrong even to think that reasonable people would realize the signs were parody?
