Tuesday, May 16, 2017

Dissing Trump on the wall of his hotel using projected light

In the news recently has been the work of protest projectionist who has been casting messages in light up onto the lintel of the Trump International Hotel, featuring the Emoluments Clause, the legend "Emoluments Welcome" and "Pay Trump Bribes Here."

Over at the Volokh Conspiracy, Eugene Volokh has an analysis of the legal issues.  I had a chance recently to look at the legal issues specifically from a DC law perspective.  As I read the cases, under current law, the hotel would not win a lawsuit against the projectionist (I leave aside whether the DC Council could adopt a content-neutral law regarding the projection of light communicating messages onto the buildings of others).  Here is what I found

Three main causes of action seem theoretically possible: trespass to chattels, trespass and nuisance. 

Trespass to Chattels
A claim for trespass to chattels would not succeed because, under a J. Skelly Wright opinion for the D.C. Circuit,  that cause of action requires  actual damage to the property with which interference is claimed  Pearson v. Dodd, 410 F.2d 701, 707 (D.C. Cir. 1969) (temporary removal of papers from plaintiff’s office so that they could be copied for use by reporters was not actionable) and physical dispossession or taking of the property:  Hornbeck Offshore Transp., LLC v. U.S., 563 F. Supp. 2d 205, 213 n.8 (D.D.C. 2008), aff'd, 569 F.3d 506, 511-512 (D.C. Cir. 2009):  “Yet, a trespass to chattel action is quite different from the facts alleged here: it “may be committed by intentionally (a) dispossessing another of the chattel, or (b) using or intermeddling with a chattel in the possession of another.” Restatement (Second) of Torts § 217 (1965); see Pearson v. Dodd, 410 F.2d 701, 707 & n. 30 (D.C.Cir.1969) (quoting Restatement language). The second prong of this definition requires physical contact with the chattel, see Restatement (Second) of Torts § 217 cmt. e; the dispossession prong requires physical dispossession or at the very least taking the chattel into the custody, by levy of execution or attachment, impounding, or the like, see id. § 221 & cmt. g.   To me, the case is most reminiscent of Intel Corp. v. Hamidi, 71 P.3d 296 (Cal. 2003), where Intel sued one of its former employees for sending mass emails to all of its staff, criticizing the company.  It always seemed to me, when that case was being litigated, that the relative ease with which a company can block emails to its server from a given source was the most important answer to the company’s contention that it needed to deploy tort law to protect its property interests.  Here, the projector was easily blocked by the simple expedient of sending out a guard to stand in front of the projector.  Or, the hotel could use its own lights, focused on the lintel area, to obliterate the words written in projected light.  So, even though the projectionist told the press that he intends to be back, the hotel does not need a tort cause of action to protect its interests..


There are two main objections to the trespass cause of action.  First, the cases around the country require a physical entry onto land to make out the tort of trespass.  For example, "The Texas Supreme Court set forth the following definition of trespass with its decision in Railroad Comm'n of Texas v. Manziel, 361 S.W.2d 560 (Tex.1962): “To constitute trespass there must be some physical entry upon the land by some ‘thing.’ Id. at 567."  Stevenson v. E.I. DuPont De Nemours and Co., 327 F.3d 400, 406 (5th Cir. 2003).

The DC cases assume this requirement but have never discussed it.  Nat’l Tel. Co-op. Ass’n v. Exxon Corp., 38 F. Supp. 2d 1, 15 (D.D.C. 1998) (citing Prosser and Keeton treatise).  However, in recognizing the extension of the theory of trespass to incursion by microscopic particulate matter, this decision agreed with those cases that require “actual harm to the property” and not mere diminution of economic value.  Id.  The court cited two cases approvingly for this proposition: (“Diminished property value without evidence of physical harm is not considered ‘actual or substantial damage’ for trespass claims predicated on indirect invasions.”); (“Only if the indirect and intangible invasions causes substantial damage to the plaintiff's property, thereby infringing his exclusive possessory interest in the property, will an action for trespass lie.”);

The leading case, which is properly featured in the Volokh blog post, is Painters Dist. Council 15 Loc. 159 v. Great Wash Park, 2016 WL 4499940, at *2 (Nev. App. Aug. 18, 2016).  The court unanimously refused to allow a claim for trespass; the majority said:

    "Our review of trespass law in other jurisdictions reveals two lines of cases. Jurisdictions that adhere to the traditional rule of trespass hold a trespass only occurs “where the invasion of land occurs through a physical, tangible object.” See Babb v. Lee Cty. Landfill SC, LLC, 747 S.E.2d 468, 477 (S.C. 2013). Jurisdictions that adhere to the modern theory hold that a trespass may also occur when intangible matter, such as particles emanating from a manufacturing plant, cause actual and/or substantial damage to the res. See Pub. Serv. Co. of Colo. v. Van Wyk, 27 P.3d 377, 390 (Colo. 2001)."

Several cases have looked at the question whether shining lights onto the plaintiff’s property can constitute a trespass.  The consensus view is that light particles do not constitute physical entry; nor would they meet the “physical harm” causing “actual or substantial damage." The issue was litigated most directly in  Painters Dist. Council 15 , which involved a local union that was projecting displaying messages using light onto the property of a company with which it had a dispute.  A long concurring opinion, quoted as some length in the Volokh blog post, argues that the deliberate projection of a message using light is better treated under the law of nuisance rather than the law of trespass.

There is a second possible objection to a trespass cause of action. The plaintiff’s cause of action is for an injury to its possessory right in the property.  Greenpeace, Inc. v. Dow Chem. Co., 97 A.3d 1053, 1060 (D.C. App. 2014); see also Pearson v. Dodd, 410 F.2d 701, 706 (D.C. Cir. 1969) (needed for trespass to chattels).  A defendant may defend against a trespass claim by showing that, for some reason of law, the plaintiff did not have a possessory right at the time of the alleged trespass.  Holliday v. DeBruce Grain, 650 F. Supp.2d 877 (S.D. Iowa 2009).  And the lease for the Old Post Office forbids an elected official of the United States from holding the lease – could the projectionist defend a trespass claim by raising the arguments, discussed earlier this year, that the decision of the GSA that the procedures followed by the Trump Organization to insulate its lease from Donald Trump’s involvement was “unpersuasive, as a matter of law”? Someone could have fun litigating the case from that angle!


The last major claim that the Trump Organization might make is for nuisance.  The most important obstacle to this sort of claim is the significant current in nuisance law holding that nuisance is a theory of damages for the commission of some independent tort; namely that “[n]uisance is a field of tort liability, rather than a type of tortious conduct.” Ortberg v. Goldman Sachs Grp., 64 A.3d 158, 161-69 (D.C. 2013), quoting District of Columbia v. Fowler, 497 A.2d 456, 461 (D.C.1985), rather than any intentional interference in the plaintiff’s interests, An earlier line of DC cases held that nuisance claims could be brought at an independent tort; then that there had to be an independent tort  Ortberg reserved judgment on the question whether it remains open to argue that the early line of cases remains theoretically open, but it squarely held that the theory of private nuisance could not be deployed to forbid loud picketing by animal rights activists at the offices of Goldman Sachs or in front of the home of a Goldman Sachs employee, complaining about that firm’s investments in Huntingdon Life Sciences, a company that did medical research using live animals.  Said the court: 

    “To be actionable as a nuisance, the offending thing must be marked by ‘some degree of permanence’ such that the ‘continuousness or recurrence of the things, facts, or acts which constitute the nuisance,’ give rise to an ‘unreasonable use.’ ” Id. (citing Reese[ v. Wells,] 73 A.2d [899,] 902 [D.C. 1950]). Thus, we actually invoked the “continuity” or “substantial harm” and the “continuousness or recurrence” factors articulated in Reese, and first appearing in [Baltimore & Potomac R.R. v. ] Fifth Baptist Church, 108 U.S. [317,] 329 (1883).

    64 A.3d at 168.

So the current state of the law on this question suggests that the projectionist cannot be sued successfully (would the Trump Organization be able to sue in diversity to avoid the DC Anti-SLAPP law?).

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