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A group has organized a "B-Pee Day" to "take a leak on BP in revenge." This Facebook group, which does not have a listed leader, advocates that upset citizens urinate on their local BP station. However, in a bit of double talk, the site also states that participants should check the laws of their jurisdiction and avoid doing anything illegal. Note: We'll spare everyone the trouble of checking; urinating on private property as a form of protest is illegal in all 50 states.
The question now becomes, is this group pushing a valid, protected, free speech right, or is it an illegal incitement of imminent lawless action? Since the 1969 Supreme Court decision in Brandenburg v. Ohio, the court has decided incitement related First Amendment cases using the Brandenburg test, a system first created by famed Justice Learned Hand. Under the Brandenburg test:
The government cannot suppress speech that advocates the use of force or breaking the law except when the advocacy is directed to inciting imminent lawless action and is likely to incite such action.
Here, we have the B-Pee Day group advocating that citizens break the law by urinating on BP gas stations. Is their advocacy inciting or producing imminent lawless action? Is it likely to incite or produce lawless action?
The answers to both questions seem to be a resounding ... maybe. The Facebook page is filled with pictures of cartoon characters urinating on BP logos. The page says, "They leaked on us, it's time to take a leak on them. If BP doesn't agree to pay for the damages, then it's only fair that we get to take a leak on our local BP station." But then there is also the disclaimer: "please check the laws in your jurisdiction, and don't do anything illegal, okay? And don't actually pee on any people, okay? I mean, gees, it's pee after all."
So how does this all shake out? In the end, it is unlikely that the creator of the group will be prosecuted. He or she could argue that the site is meant to be humorous and that it contains a clear disclaimer advising members not to break the law. In the grand scheme of things, this is a minor crime and a prosecutor is unlikely to want to get involved. It is foreseeable that Facebook might decide to take down the group, although that is not a foregone conclusion.
Understand, however, that's not to say police won't arrest and prosecute anyone caught urinating on a BP station. Exercising your First Amendment rights by speaking out is a better and far more tactful solution than public urination.