A newly proposed law in Burlington would allow people to sue anyone who violates a city ordinance, whether it’s the ban on urinating in public, littering or letting a dog run loose.
City councilors, though, crafted the change with a specific violation in mind. They want to give people the right to sue for damages anyone who defaces public property with hateful stickers or graffiti. The ordinance would also allow people to submit pictures of suspects to police, who could write the tagger a ticket.
The 11 councilors who attended last week’s meeting gave the ordinance preliminary approval on a unanimous vote; a final vote is scheduled for November 12.
Officials say the ordinance simply expands on a right already provided in the city charter, but the measure is concerning to First Amendment attorneys, who say it would open the door to selective enforcement of the city’s graffiti ordinance. Applying a so-called “hate crime enhancement” to an expressive activity such as stickering raises free-speech questions, the attorneys said.
“It’s very likely that someone will sue over this,” said Harrison Stark, a senior staff attorney with the American Civil Liberties Union of Vermont. “That case, I imagine, would raise a number of compelling First Amendment arguments.”
Mayor Emma Mulvaney-Stanak and city councilors have lauded the proposal as a means of deterring people who have plastered city property with transphobic stickers in recent years. The decals, with messages such as “No one was ever born in the wrong body,” make transgender people feel unsafe and unwelcome, officials have said.
“It’s really easy to see the potential for abuse here, for neighbors bringing each other into court over anything that elicits strong reactions.” Harrison Stark
The stickers began appearing in 2020 on telephone poles, trash bins and even Seven Days newsstands. People regularly report them on the city-run app SeeClickFix, sometimes accusing the alleged perpetrators by name.
One person often mentioned is New North End resident Bill Oetjen, an activist who has publicly acknowledged posting anti-trans stickers. In 2022, his sticker spree caught the attention of then-state representative Mulvaney-Stanak, who launched a campaign on GoFundMe to purchase decals with pro-trans messages. She put her stickers up, with permission, in the windows of homes and cafés, she said.
It didn’t slow Oetjen, and in 2023, the city council passed a resolution condemning the stickers and other transphobic activity. The measure asked a council subcommittee to amend the city’s existing graffiti ordinance to stem the “hateful and harmful messages.”
Seven months later, in October 2023, Burlington police ticketed Oetjen after someone took video of him affixing stickers to traffic signs. The fines totaled $1,200. That prompted Oetjen to obtain city records showing that since March 2022, he had been the only person ticketed under the graffiti ordinance — despite widespread tagging in the city.
Oetjen hired Jared Carter, an attorney and adjunct professor at the Cornell First Amendment Clinic in Ithaca, N.Y., who wrote a sternly worded letter accusing city officials of targeting his client. The city agreed in April to dismiss the tickets.
The council subcommittee began working on the ordinance in May and voted on the current proposal in late September before earning approval from the full council last week.
The law would allow residents to file civil lawsuits that seek to address alleged harms in lieu of government enforcement. Such “private rights of action” are becoming increasingly common options. Vermont lawmakers, for instance, passed a bill this year that would allow consumers to sue companies over a data breach. Gov. Phil Scott vetoed the measure because of concerns that it would harm businesses.
As proposed, Burlington’s ordinance would allow people to sue over any act of graffiti, offensive or not. But it also provides what officials have called a “hate crime enhancement,” which would award at least $100 in damages if a person proves the graffiti or stickers targeted their race, religion, gender identity or other protected characteristic.
If a court found in favor of the complainant, the tagger would be required to pay the person’s attorney fees. But if the court deemed the complaint frivolous or without merit, the plaintiff would have to pay the defendant’s court fees.
Mulvaney-Stanak says the proposal is a way to take aim at anti-trans rhetoric and gives the city stronger tools to deal with offensive stickers.
“This feels like a really important step forward to strengthen our options,” she said. “We’re looking at creative legal solutions that stand up to my desire to respect free speech but also to make sure we’re being clear around hate-driven speech.”
First Amendment attorneys see it differently. Carter, Oetjen’s lawyer, likened the ordinance to “censorship by mob rule.” He anticipates his client would be sued, given that the ordinance rewrite was prompted by Oetjen’s stickering.
Laws regulating speech should be enforced equally, but leaving the job to citizens removes those guardrails, Carter said. The ordinance could be used to suppress other views, such as pro-Palestinian statements that Jewish people may find threatening, he said.
The government would be “choosing winners and losers based on the content of speech,” he said. “That’s extremely problematic from a free speech perspective, and I don’t think that’s the society we want.”
Stark, the ACLU staff attorney, agrees. While enhancements for hate crimes are generally legal, those for hate speech raise legal issues, he said.
Having private citizens enforce laws is often a way for the government to distance itself from unconstitutional actions, Stark said. He compared the tactic to a 2021 Texas law that bars abortion once a fetal heartbeat is detected, known as the Heartbeat Act. Enacted before Roe v. Wade was overturned, the law allows private citizens to sue abortion providers for at least $10,000 in damages plus attorney fees.
“It’s really easy to see the potential for abuse here, for neighbors bringing each other into court over anything that elicits strong reactions,” Stark said of Burlington’s proposal. The risk of being sued would create an unreasonable chill on protected speech, he added.
Oetjen did not respond to a request for comment.
City officials have defended the language of the proposed ordinance. Asked at last week’s council meeting if it would open the city to liability, Assistant City Attorney Erik Ramakrishnan dismissed the notion.
“People can sue anybody for anything all the time,” he told councilors. “I think that what we’re proposing here is legally defensible.”
In a statement, City Attorney Jessica Brown said the First Amendment doesn’t protect hate speech that’s expressed when violating the law — and defacing public property is just that. Taggers would only be liable for damages if they acted maliciously or “for the purpose of intimidating or harassing a person or group,” Brown said.
Councilor Gene Bergman (P-Ward 2), a former city attorney, said he sees no issue with the private right of action. The prospect of being sued would deter the stickering, he said, and provide a “nonviolent, one-on-one dispute resolution forum and process” for people to resolve their differences.
New North End resident Olivia Taylor supports the proposal. Taylor, who has organized cleanups to remove transphobic stickers, says they’re often placed near schools and playgrounds to intimidate kids who are questioning their gender identity. That type of harassment “feels like a cut-and-dry example of what this [ordinance] is for,” Taylor said.
Even so, assembling a court case would be a tall order, Taylor said, noting that people targeted by stickers may be loath to sue, for fear of future harassment. And it takes effort to get proof of someone stickering. The person who captured Oetjen on video had to hide in the bushes and wait, she said.
Stark, the ACLU lawyer, worries that adopting a “bounty-style” enforcement scheme could encourage vigilantism. If Burlington wants everyone to feel welcome, there are other ways to do it.
“The best antidote to hate speech is more speech,” Stark said. “Authorizing this kind of bounty-style private enforcement … is just a recipe to further erode the social fabric in ways that really undermine the goal the city is trying to pursue.”
The original print version of this article was headlined “Sticky Situation | A proposed Burlington ordinance would let people sue over hateful graffiti and stickers. First Amendment lawyers have concerns.”
Related Stories
This article appears in Nov 6-12, 2024.
Got something to say?
Send a letter to the editor and we'll publish your feedback in print!
