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Seems to me the DA’s letter opens her up to an easy 14th Amendment equal protection claim. She idiotically endorses the BLM “cause”, and their “speech”, while condemning the speech of this couple and charges them with crimes based upon their alleged thoughts. She is clearly choosing to endorse the free speech of some people and to condemn the free speech of others. There is no way that action can be characterized in any way as equally applying the laws.

Had the DA simply charged them with painting the street without a permit (whatever the relevant ordinance would be for that), then she might have been in the clear, but that’s not what she’s done. The lack of a permit, and the fact that the BLM painters apparently did have a permit, is the only legal difference here. Anything beyond that has only to do with the specific message that each group sought to express, and while I am far from an attorney I believe that the courts have uniformly frowned upon government discriminating between groups on free speech grounds, based only upon their message.

The only way I think the couple might be in trouble is if a court or jury interprets their action as only seeking to obliterate someone else’s message, rather than adding their own. They probably should have painted their own message next to the BLM “mural”, or at the very least altered the lettering to create a different message.

Here’s the text of the law:

422.6.

(a) No person, whether or not acting under color of law, shall by force or threat of force, willfully injure, intimidate, interfere with, oppress, or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of this state or by the Constitution or laws of the United States in whole or in part because of one or more of the actual or perceived characteristics of the victim listed in subdivision (a) of Section 422.55.

(b) No person, whether or not acting under color of law, shall knowingly deface, damage, or destroy the real or personal property of any other person for the purpose of intimidating or interfering with the free exercise or enjoyment of any right or privilege secured to the other person by the Constitution or laws of this state or by the Constitution or laws of the United States, in whole or in part because of one or more of the actual or perceived characteristics of the victim listed in subdivision (a) of Section 422.55.

Here’s 422.55: (a) “Hate crime” means a criminal act committed, in whole or in part, because of one or more of the following actual or perceived characteristics of the victim:

(1) Disability.

(2) Gender.

(3) Nationality.

(4) Race or ethnicity.

(5) Religion.

(6) Sexual orientation.

(7) Association with a person or group with one or more of these actual or perceived characteristics.

Trying to stretch that to cover painting over a Marxist slogan is going to take some work. I’m guessing the “hate crime” charge will never get to trial.