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Jurors Reach Verdict In San Diego Chalk Vandalism Case
July 2, 2013 1:30 p.m.
Jeff Olson, Defendant
Tom Tosdal, Olson's Attorney
Marybeth Herald, Professor of Law, Thomas Jefferson School of Law
Related Story: Jurors Reach Verdict In San Diego Chalk Vandalism Case
CAVANAUGH: The effort to convict a San Diego man for vandalism in connection with chalk drawings he made outside the bank of America went down in flames yesterday. The jury found Jeff Olson not guilty on all 13 counts of vandalism he was charged with by the San Diego City attorney's office. Media outlets dubbed the case "Chalkgate." But this is just one of several chalk drawing prosecutions that have happened across the country. My guests, Jeff Olson is a former defendant in the case.
OLSON: Good afternoon.
CAVANAUGH: Attorney Tom Tosdal -- am I pronouncing your name correctly, Tom?
TOSDAL: Close enough.
[ LAUGHTER ]
CAVANAUGH: Attorney Tosdal won the case, and Marybeth Herald is a professor of law.
HERALD: Thank you very much.
CAVANAUGH: And Jeff, congratulations for winning this case.
OLSON: Thank you, it's a big relief. This has been a pretty stressful situation.
CAVANAUGH: What message do you think this sends to city prosecutors?
OLSON: I think they ought to think twice about trying to put limits on spree speech. The constitution is real specific. And it was sort of surprising that they didn't catch onto that sooner.
CAVANAUGH: Can you tell us why you wrote on the bank of America sidewalks in the first place?
OLSON: Of course. I was trying to send a message to the people who use the sidewalks that there was a business that was conducting fraudulent practices operating openly in Northpark. And so I was trying to warn people that they were at risk of being defrauded.
CAVANAUGH: And this was back in 2011?
OLSON: Yeah, that's when it started. I was inspired by bank transfer day, which was the movement to encourage folks to close their account business at big Wall Street banks and reopen their personal banking needs with a local community nonprofit credit union.
CAVANAUGH: And what kind of slogans kid you write?
OLSON: Things like "no thanks big banks." And "help save America, join a credit union." And I wrote "Matthew 21: 12."
CAVANAUGH: And Tom, a big part of your defense was that this was not malicious. Jeff didn't like bank of America very much, so why were these slogans not malicious?
TOSDAL: Two reasons. No. 1, what Mr. Olson was doing was communicating with the public. He wasn't trying to injure or annoy the bank of America. And secondly, his intent was squarely within the walls of free speech. This was a decision writ by a judge in Orlando Florida last year with regard to a young man who wrote chalk protests on the sidewalk, a public sidewalk in the city of Orlando. And that judge held that that speech was protected. As a matter of fact, it was at the core of 1st Amendment freedom. So it's not malicious, No. 1, because of Mr. Olson's intent, and No. 2, because it was at the core of 1st Amendment freedoms.
CAVANAUGH: What kind of damages did bank of America claim that is suffered because of your drawings?
OLSON: Well, they submitted documents to the Court that they had lost customers in business, and that they suffered financial losses because they voluntarily cleaned city sidewalks through the use of a construction contracting firm that they brought in special to give the sidewalks the spa treatment.
CAVANAUGH: So that was, like, $6,000 or so, right?
OLSON: That's what they claimed. But we were able to show that you can wash an entire of slab of city sidewalk with 6 ounces of water in six seconds, and of course the judge didn't think that that was admissible evidence. But I think the bank decided to go the Rolls Royce route instead of the easy way.
CAVANAUGH: Just a hose, perhaps. A lot was made of the fact that you potentially faced up to 13 years in prison if you'd been convicted. But that wasn't really a likely scenario, was it?
TOSDAL: No, I don't think it was, but it was the maximum sentence prescribed by law. And the complaint written by the city attorney was very careful to specify that each count bore the maximum penalty of one year in jail, and a $1,000 fine. And also an automatic loss of a driver's license for a period of time. And so what it was was a very, very heavy hammer aimed at Mr. Olson by the city attorney's case.
CAVANAUGH: And why was this case, in your opinion, pursued by their office?
TOSDAL: The B of A is the 4th largest corporation in America. It can take $5 billion in taxpayer bailout, but it cannot take sidewalk chalk protests in front of one of its branches. This was testimony in the trial. These chalk events were reported to a security operation center in Charlotte, North Carolina. And directions went out from there to a corporate security vice president in Southern California to take care of it. He talked to the B of A lawyers to get a restraining order, and the lawyers told him the truth that you can't get a restraining order on a sidewalk. So they pressured, pressured, pressured the city attorney to bring a criminal complaint. And the city attorney did so. If any one. Us who are not huge corporations would have done the same thing, we would have been met with a denial. But the city attorney of San Diego decided to do the bidding of the bank of America.
CAVANAUGH: We invited city attorney Jan Goldsmith to be part of this discussion today, and he was not available to do so.
TOSDAL: Oh, that would have been fun.
[ LAUGHTER ]
CAVANAUGH: Mary Beth Harold is here. Thank you again for coming in. This case seems to have struck a cord with people. It was reported in the Huffington Post. What is it about this case that got people all fired up?
HERALD: I think that the facts of the case that pit a very powerful group, the banks, and the government against a person that is sort of talking in a very small and innocuous way set up a David and Goliath fact pattern. I think that's what resonated with a lot of people.
CAVANAUGH: In reading about this, and in lots and lots of articles that were written about this, apparently coloring streets and walls with chalk has provoked a number of prosecutions across the country. In LA, a number of people have been arrested for writing political slogans in chalk on city streets. Is there an obvious difference in the law between chalking a building with a tag, graffiti, or one with a free speech objective?
HERALD: In this particular law, there is no distinction made at all. So the essence of the 1st Amendment really is that the government can't go after the content of our speech. There's a very famous case in Texas where Texas prosecuted someone for burning a flag. And they admitted it was because of what the person was saying with the burning of the flag. If they had prosecuted that person for burning something without a permit, that would have been a much easier case for the government to sustain because it's neutral. Whenever the government goes at the content of the speech, the 1st Amendment is at its strongest. The question here is whether there is an attack on the content of the speech versus a neutral prosecution of defacing of the sidewalk. So the statute itself seems to be written in fairly neutral terms. The question would be whether there is a selective enforcement of or a nonconstitutional question is whether there's a waste of prosecutorial resources in going after nonpermanent graffiti versus permanent.
TOSDAL: I've read the law here, and it's not anywhere as clear with due respect to the professor as she says. The word deface in the statute is not well defined. And when you have a transitory substance like sidewalk chalk, which is sold with that name, that scuffs off with foot traffic, washes off with rain, or is squirted off with a hose, that's not graffiti. And I think it's both a common law mistake and a constitutional mistake to call something that is chalked in protest on a public sidewalk graffiti.
CAVANAUGH: But the California or the of appeals ruled that vandalism does not require an element of permanence.
TOSDAL: I'd be glad to have this debate.
[ LAUGHTER ]
TOSDAL: Let me just pull the nail in the coffin on this one. There is 1 case, and it was a gang case, where a young man trespassed inside of a private theatre and wrote 33 times all over the theatre, including once on a window the phrase "right to crime." You cannot take a statement in a criminal case about the absence of permanence from those facts and apply it to political protest outside on a public sidewalk with a transitory substance like chalk.
CAVANAUGH: Gotcha. What is your reaction to judge Shore forbidding the 1st Amendment defense for Jeff?
TOSDAL: I'm not going to criticize the judge as a person or judicial officer. All I want to do is disagree with his ruling. And I think it was incorrect. I think there's a danger here when you have a constitutional right, especially the 1st Amendment, which is the constitution would not have been enacted but for amendments 1-10. What the ruling meant was that the constitution was defined by a criminal statute. And that is upside down. The constitution defines the law of the criminal statute. And so we had a fundamental disagreement on that issue.
CAVANAUGH: I want to read some statements that have recently come from the city attorney's office. For instance, the Voice of San Diego is reporting that the neighborhood prosecution unit is reassessing, it's issuing guidelines in light of this case, police officers can still ticket low-level graffiti as infractions without the city attorney's involvement. So I guess let me ask you, Jeff, you think you made a permanent change in San Diego by of this case?
OLSON: Maureen, I sure hope so. The philosopher Voltaire said to learn who rules over you, simply find out who you are not allowed to criticize. And I think we've kind of learned who rules over us by the actions that the city attorney's office took here. And if I can help be a part of making sure that nobody else has to go through a prosecution like this again, then I'm happy to have done it.
CAVANAUGH: As Tom mentioned, a political chalker in Florida was jailed for writing political slogans. He sued the city and won for a violation of his constitutional rights. Do you have plans of suing the city for in legal action?
OLSON: I have not even thought of that. I am the city. We live in a democracy. I am the City of San Diego. My taxes paid to pave those sidewalks. I'm not going to come after the City of San Diego over this. I wouldn't want to -- this is not about the money.
CAVANAUGH: And how has the prosecution affected your life, Jeff?
OLSON: Well, it's been pretty stressful. This has really been disruptive. I have elderly parents who found this extremely distressing. And I can tell you that I've experienced physical discomfort based on the levels of stress that I've been under lately. And this has not been real fun. But it's worth it to make sure that the 1st Amendment is alive and well in San Diego.
CAVANAUGH: And Tom, what lesson do you take away from this case?
TOSDAL: Thank God for the jury system. But for the jury system, the political persons who are prosecutors and their corporate buddies will have us in the bag.
CAVANAUGH: Now, I wanted to also read you one more thing that the city attorney's office apparently has said in a statement today. And that is "our prosecutors never treated this case as anything more than a graffiti case." Can you quickly give me your response to that, Tom?
TOSDAL: That's a crock.
CAVANAUGH: That's quick!
[ LAUGHTER ]
TOSDAL: The reason is this: If you go to Northpark, which is a very artsy, young person area, there is chalk and street art all over the place. But the problem with it is none of it's political. And I say problem. The difference is that none of it is political. We have a photograph of a 3-year-old child chalking a public street right in front of the bank of America. She wasn't arrested. Thank goodness. No one else was. But when the B of A picks up the phone, Mr. Olson gets prosecuted. So it's a crock.
CAVANAUGH: Well, thank you. I have to wrap things up. I've been speaking with Jeff Olson, Tosdal who won the case, and Marybeth Harold, professor at the Thomas Jefferson School of Law. Thank you all.